### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 77946-0-I

Respondent, DIVISION ONE UNPUBLISHED OPINION
FILED: July29, 2019 ANDRus, J.

— Vernon Officer appeals his conviction and sentence for unlawful imprisonment, third degree assault, and felony harassment. He argues that the trial court violated his Sixth Amendment right to counsel by granting his requestto represent himselfand then abused its discretion in refusing to reappoint counsel in the middle of trial. Officer also challenges the sufficiency of the evidence ofunlawful imprisonment. Finally, he contends his exceptional sentence exceeds the statutory maximum allowed forthe offenses. We remand forthe trial court to include a notation explicitly stating that the combination of Officer’s confinement and community custody may not exceed 60 months. In all other respects, we affirm. FACTS In the summer of2016, Officer and Suzanne Wood metthrough an online dating website and began a romantic relationship. Wood moved to Seattle from Portland to live with Officer, who hadjust completed afederal sentence forfiling a

v. VERNON WAYNE OFFICER,

Appellant.No. 77946-0-1/2

false tax return. AfterWood and Officer moved into an apartment in Wallingford, the relationship soon became troubled. Wood had previouslyworked as a receptionist at a lawfirm and had once considered becoming an attorney. Officer asked her to help him with a lawsuit against the federal government. According to Wood, Officer “lived, ate and breathed” the lawsuit. Officer told Wood he wanted her to work on the lawsuit
seven hours a day. But whenever Wood questioned Officer about his claims, which appeared to involve money Officer took from an elderly business partner, Officer“would just go ballistic.” Officeronce slammed Wood intothe kitchen sink, telling her that he had previously been in prison and threatened herwith harm if shewenttothe police. Officerfrequently‘rant[ed] and rav[ed]” atWood forvarious transgressions. Wood also witnessed Officer physically threaten his employer, resulting in Officer losing hisjob. On December 16, 2016, Officercame home in a bad mood. HeaskedWood ifshe had worked on his case that day. When Wood said that she didn’twant to help him anymore, Officer became enraged and shoved her, hurting her neck. The following morning, Wood woke up to Officer screaming at her and demanding that she cook him breakfast and work on his case. When Wood refused, Officerrepeatedlypicked her up and slammed heron the bed. Officergot
on top ofWood, grabbed and scratched at herface, and began punching the bed next to her head. He yelled that he had nothing to live for and that he would kill heror have her killed. Wood was terrified and thoughtthatshe was going to die. Wood eventuallywas able to get up and began packing a suitcase. Officer tried to grab the suitcase and said, “where do you think you’re going?” She
2No. 77946-0-1/3

repeatedly told Officer she wanted to leave. Officer sat on a couch by the door and told Wood shewas notgoing anywhere. Shewaited for him to leaveforwork, but he told her “I’m not going to work. I’m going to stay right here on this couch, and you’re not going anywhere.” Officer told Wood she was under “citizen’s arrest.” When she pleaded with him to let her leave, he asked Wood if she was going to report him to his probation officer. Wood promised Officershe would not. “That’s the last thing I was going to tell him was yes

. . . Because I

— I feared for my life. Atthat point I really, really did.” Wood testified that Officer’s truckwas blocking hercar in the driveway and she asked Officerfor his keys so she could move his truck. He refused to let her have his keys. She repeatedly asked him to let her leave; he refused. Afterabout
an hour, Officerfinally agreed to move his truck. Wood left in her car but because she did not know the area, she drove around Wallingford. She looked up the closest police station and put its coordinates into her car’s GPS. She drove to the station but then became frightened that Officerwould kill her ifshe went inside. She had blood on herface and in her hairso she returned tothe apartment, confirmed Officerwas gone, and washed herself. She then returned to the police station and reported the assault. The police officers with whom Wood spoke observed and photographed scratch marks on Wood’sface and neck. Wood sustained injuriesto herface, ear, and neck, and atthe recommendation ofmedicswho examined heratthe precinct, she sought medical treatment for her injuries at the University of Washington Medical Center. She was diagnosed with acute neck strain and neck contusions,

3No. 77946-0-114

abrasions, ear pain, and a mild concussion. Herface was visibly swollen on one side. The police informed Wood they intended to arrest Officerwhile she was at the hospital, so after receiving treatment, she returned to the apartment and barricaded the door. Officerthen began calling her demanding to knowwhy she had gone to the police. She denied having done so because she was so afraid. But Officersaid he had seen police vehicles outside their apartment, and decided not to return to the apartment. He rented a room at a local motel instead. Over the next few days, Officer called Wood over 90 times. Police arrested Officer on December 22, 2016, at his motel after he sought a temporary restraining order againstWood, claiming he was afraid of her. The State charged Officerwith third degree assault, unlawful imprisonment, felony harassment and fourth degree assault. As to the first three charges, the State alleged as an aggravating factorthattheywere part ofan ongoing pattern of domestic violence. After jury selection but before opening statements, Officer waived his right to counsel and represented himselfforthe remainder ofthe trial. Ajuryacquitted Officeroffourth degree assaultbutconvicted him on the remainder of the charges and the domestic violence aggravating factors. The trial court imposed a 60-month exceptional sentence and 12 months ofcommunity custody. Officerappeals.

4No. 77946-0-1/5 DISCUSSION

1. Waiverof Rightto Counsel Officer contends the trial court erred in permitting him to waive his right to counsel at trial and abused its discretion in refusing to reappoint counsel when Officerchanged his mind mid-trial. We disagree. Officer was represented by Joshua Andrews when his trial started on October 3, 2017. Andrews participated in pretrial hearings, including a CrR 3.5 hearing, and injury selection from October3 to October 9, 2017. On the morning ofOctober 10, before opening statements, Andrews informed the courtthatOfficer “would like to make a motion to discharge counsel and proceed pro se.’ The court initially responded “I mean we’re

—we

—we’ve already donejury selection. We’re at

—on the cusp ofopening statement.

. . And it’s kind of latefor that, to be quite candid about it.” The prosecutor asked the courtto “engage with the Defendantinthe colloquy, and then makea ruling atthattime.” Andrews stated “I don’t knowwhatthe Court’s authoritywould beto denya knowing, intelligentand voluntary waiver of that right, It is a constitutional right to represent himself.” Andrews informed the court that Officerwas ready to proceed and would not be asking for a continuance. The court responded “[W]hen it’s brought too late, the Court hasthe discretion to deny it.” The prosecutor responded, “I agreewith Your Honor, it iswithin yourdiscretion. But I dothinkthat it’s importantforthe Court [to] engage in the colloquythatwe typically use.” At the request of both the prosecutor and defense counsel, the court conducted a lengthy colloquy with Officer regarding the waiver of counsel. The court confirmed Officer had never studied law, but Officer indicated he had 5No. 77946-0-116

represented himselfapproximately25 or30years earlierin atrespassing case and had been acquitted. The courtwentoverthe charges against Officer, including the domestic violence aggravating factors, and the maximum penalty Officer faced. Officer confirmed he had discussed potential defenses with Andrews and he understood hewould be on his own during trial. The courtexplained to Officerthat “you’ll be out there by yourself

. . . making your own decisions, making some of your own mistakes, and it’s not going to be myjob to fix them for you.” Officer said, “I understand.” Officer also understood he could not change his mind once he had waived counsel: THE COURT: [Ijfwe do this, it’s not one ofthose things you can say hey, Judge, I think I really made a bad mistake. MR. OFFICER: I know. THE COURT: I want Mr. Andrews back. MR. OFFICER: He was right here. THE COURT: And expect him to come and clean up the mess for you. MR. OFFICER: Yes, sir. That isn’t

—there will be no mess. This man was not there. This woman was not there while I was there. I was there. Officerdemonstrated a limited familiaritywith the evidence rules and some confusion about hearsay, but he acknowledgedthathewould beexpected tofollow the rules. When asked why he wanted to represent himself, Officersaid: MR. OFFICER: Because I’m not

— because

— ‘cause for one thing, this is a hear

— hearsay crime. There is no video, there was no recordings. The lawyer was not present, neither was the State. It’s myword againstthe other person’s. And I have substantial evidence that proves I couldn’t have donethe crime.
6No. 77946-0-1/7

THE COURT: That

—that sounds fine. But you understand thatthat

— that evidence could

— if it’s admissible, that evidence could be provided tothejurythrough an attorneyaswell. You understandthat, right? MR. OFFICER: But he’s not going to get it across to the

—thejurors like I will. THE COURT: Soyou

—you don’tthink he’d be as persuasive as you might be? MR. OFFICER: Exactly. When asked how long Officer had been contemplating self-representation, he responded “Quite

—quite awhile ago. I

— I needed

— I needed to getto this point.” The court advised Officerthat it was not in his best interests to represent himself: THE COURT: Okay. Well, have you ever heard the expression that someone who representthemselves

— MR. OFFICER: Is a fool. THE COURT:

— has a fool fora client? MR. OFFICER: You betcha. THE COURT: Okay. MR. OFFICER: I’ve heard that. And I’m

— I’m the biggest fool in the world, I guess, because I’m going to try some Jimmy Stewart here today. Have you ever seen that movie where he’s a

— he’s a

—does himself? You seen that movie, I’m sure. The court asked if Officer still wanted to represent himself, despite the court’s warnings. Officer said yes. The court found Officer had made a knowing, intelligent and voluntarywaiverof his rightto appointed counsel.

7No. 77946-0-1/8 The court took a recess and Andrews spent approximately seven minutes going overawritten waiverform with Officer. The form explained clearlythe risks of self-representation and the lack of a right to reappointment of counsel. After confirming that Officer had no additional questions, the court signed the written waiver of counsel and discharged Andrews. The court estimated that it spent approximately 45 minutes trying to dissuade Officer from waiving his right to counsel. When thejury returned, the court informed thejury “Mr. Officeratthis point in time has elected to represent himself from here on out.” The prosecutor and Officer gave opening statements, and the State called its first two witnesses, an emergency room doctor and a police officer. Officer extensively cross-examined thesewitnesses. Afterthe lunch recess on October11, 2017, and afterthe State had called three more law enforcementwitnesses, Officerstated that he wanted an attorney again. Officertoldthe courtthat he realized he did not knowwhatwas in discovery, did not know howto question witnesses, and was afraid he “might lose control and yell or something” when Wood testified. Officer said, “I thought it would be a lot easierthan it is.” Officerasked ifthe courtwould reappointAndrews. The prosecutor objected because the State had flown in witnesses who
were waiting to testify and who needed to catch their return flights home. The prosecutor also argued that reappointing Andrews would lead to delay because it
was unreasonable to expect Andrews to pick up where Officer left off as though nothing had happened.

8No. 77946-0-1/9 The court stated “I told him I wouldn’t [reappoint counsel]. I’m inclined to stickwith that.” But the court told Officerthat it would temporarily defer ruling on his request, stating thatthe State had witnesses waiting and it needed more time to ‘digestthis.” The following morning, the court addressed Officer’s request for reappointment of counsel. The court noted that it spent a lengthy period oftime discussing Officer’s request to represent himself and determined that Officer validlywaived counsel, despite the court urging him notto do so. I pointed outall the pitfalls thatwould exist if he represented himself, his lack of experience with the Rules of Evidence, his lack of experience with criminal procedure, his lack of experience in a courtroom trying cases, the

— the fact that he couldn’t change his mind later on and askthat I bring Mr. Andrews backto clean up any mess he made. Bottom line is it boiled down tothefactthat in myopinion, Mr. Officer wanted unfettered reign totrythe casetheway hethoughtwas in his best interest. And I don’t knowwhatwas going on between him and Mr. Andrews, but I would suspect, based on the many motions in limine that Mr. Andrews brought, they had different theories as to whatwould be the most effective for Mr. Officer. The court noted that it had “been very lax in my application of procedural and evidentiary rules in orderto facilitate Mr. Officer’s efforts in getting that testimony beforethejury.

. . . I think he’s getting afairopportunityto elicitthe testimonythat he wants byvirtue ofthefactthat I’m ignoring the rules in manyways to allowthat to happen.” The court denied Officer’s requestfor reappointment ofcounsel.1 A criminal defendant has the constitutional right to waive the assistance to counsel and represent himselfattrial. Faretta v. California, 422 U.S. 806, 819-21,

1 The trial court reappointed Andrews forthe sentencing hearing. 9No. 77946-0-1/10

95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 500, 229 P.3d 714 (2010). This right, protected by Sixth Amendment of the United States Constitution and article I, section 22 ofthe Washington State Constitution, is so fundamental that it is afforded despite its potentially detrimental impact on both the defendant and the administration ofjustice. Madsen, 168 Wn.2d at 503. The right to self-representation, however, is neither absolute nor selfexecuting. State v. DeWeese, 117Wn.2d 369, 377, 816 P.2d 1(1991). The court must first determine whether the request for self-representation is timely and unequivocal. Statev. Curry, 191 Wn.2d 475, 486, 423 P.3d 179 (2018). The court must then determine whether the request is voluntary, knowing, and intelligent. Curry, 191 Wn.2d at486. We review a trial court’s decision to grant ordeny a defendant’s requestto proceed pro se forabuse ofdiscretion. Curry, 191 Wn.2d at483. A court abuses its discretion only if its decision is manifestly unreasonable, rests on facts unsupported in the record, orwas reached by applying the wrong legal standard. Curry, 191 Wn.2d at 483-84. We give great deference to the trial court’s determination because it is in a better position than this court because it had “the benefit of observing the behavior and characteristics of the defendant, the inflections and language used to make the request, and the circumstances and context in which it was made.” Curry, 191 Wn.2d at 484-85 (citing State v. Mckenzie, 157Wn.2d 44, 52, 134 P.3d 221 (2006)).
a. The timing of Officer’s request Officerfirstarguesthe court relied on thewrong legal standard in assessing the timeliness of his request. The record does not supportthis argument. 10No. 77946-0-Ill 1 We require a request for self-representation to be timely to ensure a defendant cannot use it“to delayone’strial orobstructjustice.” Statev. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). When a requestto proceed pro se is made governs the amount of discretion the court has to grant or deny it. If the request is made “well before the trial or hearing and unaccompanied by a motion for a continuance, the right of self-representation exists as a matter of law.” Madsen, 168 Wn.2d at 508 (quoting State v. Barker, 75 Wn. App. 236, 241, 881 P.2d 1051 (1994)). If the request is made “as the trial or hearing is about to commence, orshortly before, the existence ofthe rightdepends on thefacts ofthe particularcasewith a measure ofdiscretion reposing inthetrial court inthe matter.” Madsen, 168Wn.2d at 508 (quoting Barker, 75Wn. App. at241). Ifthe defendant makes the request “during the trial or hearing, the right to proceed pro se rests largely in the informed discretion ofthe trial court.” Madsen, 168 Wn.2d at 508 (quoting Barker, 75 Wn. App. at241). Here, Officer made his request to proceed pro se after the jury was empaneled but before opening statements began. Officer’s requestfalls into the last category in this continuum and the court possessed the greatest amount of discretion to grant or deny the request. Both trial court and the State acknowledged this discretion. There is no evidence in the record that the court misunderstood the extent of its discretion. Officer argues that because his request was untimely, the trial court was 

### required to deny it. Officer relies on a statement made by our Supreme Court in Curry:

11No. 77946-0-1/12 If the request for self-representation is untimely or equivocal, the defendant’s rightto counsel remains in place and thetrial court must denythe requestto proceed pro Se. Curry 191 Wn.2d at 486. But the use ofthe word “or” in this sentence must be read in lightofthe entire reasoning ofCurry, inwhich the Supreme Courtdiscusses the “broad”discretion atrial court possessesto allowa defendanttowaivethe right to counsel. The Court conclusively rejected any categorical canon: [A] generally applicable rule cannot be effectively constructed. This is becausethe decision isfact specificand the extent ofthetrial court’s discretion is partially tied to the timing of a defendant’s request to proceed pro se.

. . . Accordingly, we have not articulated a bright-line rule instructing thetrial courtwhen to grant and when to deny a requestforself-representation, nor is it pragmaticto do so. Curry, 191 Wn.2d at485-86 (citations omitted). Clearly, ifa request is untimely, a trial court has discretion to denythe request. But it is not required to do so. b. Officer’s unequivocal requestto proceed pro se Officer next contends that the court erred in finding that his request was unequivocal.2 He argues that his comments were merely an expression of frustration with his attorney, not a requestto represent himself. We again find this argument inconsistentwith the record. In Curry, the Supreme Court adopted the Ninth Circuit’s definition ofwhat constitutes an unequivocal request for self-representation. “[Am unequivocal requestto proceed prose requires adefendantto ‘makean explicitchoice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself.” 191

2 Officerargues thatthe courtfailed to make an express finding that Officer’s requestwas unequivocal. But our Supreme Court has held that an “oral proclamation from the judge that a request for self-representation is unequivocal is not required if the record reflects that the judge applied the correct requirement.” Curry, 191 Wn.2d at491. 12No. 77946-0-1/13

Wn.2d at 490 (quoting United States v. Ant, 41 F.3d 516, 519 (9th Cir. 1994)). It instructed that trial courts should look at the form of the request (i.e., was the request made formally in a motion orspontaneously at a hearing), the language of the request (i.e., was the defendant asking to represent himselforjust expressing frustration), and the context surrounding the request (i.e., was the request made because of a disagreement with counsel over trial strategy). 191 Wn.2d at 488. “[T]he trial court must make these determinations on a case-by-case basis, taking into consideration the circumstances ofeach request.” Curry, 191 Wn.2d at490. Here, the record establishes that Officer unambiguously expressed an explicit choice to represent himself. First, Officer made the request after considering the option for “quite awhile.” He told the trial court that he needed counsel’s help through the pretrial motions stage and through jury selection but believed he was capable of moving forward on his own from that point. Although the requestwas made orally, these statements reveal that his requestwas neither spontaneous nor impulsive. Second, while Officervoiced some general dissatisfaction with Andrews, he
was not asking for a different attorney because he disagreed with counsel’s trial strategy. He expressed a strong desireto actas his own counsel because hewas there during the incidents at issue and Andrews was not. “[W]hen a defendant makes a clear and knowing request to proceed pro se, such a request is not rendered equivocal bythe factthatthe defendant is motivated bysomething other than a singular desire to conduct his or her own defense.” State v. Modica, 136 Wn. App. 434, 442, 149 P.3d 446 (2006).

13No. 77946-0-1/14 We do not find State v. Woods, 143 Wn.2d 561, 586-87, 23 P.3d 1046 (2001) to be factually analogous. In that case, the defendant soughtto represent himself only to avoid a trial delay caused by the unavailability of counsel. The Supreme Court held that the defendant’s request to represent himself was not unequivocal underthese circumstances. Such was notthe case here. Officerwas notfaced with atrial delaydueto counsel’s unavailability. And thetrial courtspent 45 minuteswith Officerensuring that his decision to represent himselfwas a matter ofchoice. Finally, the context of Officer’s request demonstrates that Officer believed he could do a betterjob than Andrews would. He acknowledged that he had not gone to law school and was notfamiliarwith courtroom procedure. But he vowed that he was “more than capable ofdoing this.” Officerstated that he had read all the discoveryand could communicate his position more persuasively, to “showthe jury

. . . that I’m for real.” This further shows that Officer made a clear and conscious decision to represent himself. Even after45 minutes ofquestioning, and being advised against doing so, Officer remained determined to represent himself. The form and language of Officers’ request, as well as the context in which the request was made, confirm that Officer’s requestwas unequivocal.
c. Officer’swaiverwas knowing, voluntary and intelligent Officer contends the trial court erred in finding his waiver of counsel was knowingly and intelligently made because he erroneously assumed he would not be convicted if he had the opportunity to address the jury directly. But Officer’s

14No. 77946-0-1115

choiceto advance a defense that an attorney mightview as unlikelyto succeed is not a basisforfinding his waiver less than knowing or intelligent. To demonstrate avalid waiverofthe rightto counsel, the record mustshow the defendant understood “the dangers and disadvantages ofself-representation” and establish “his choice is made with eyes open.” Faretta, 422 U.S. at 835. The method for determining whether a defendant understands the risks of selfrepresentation is a colloquy on the record. State v. Burns, 193 Wn.2d 190, 203, 438 P.3d 1183 (201 9). The colloquy, at a minimum, must inform the defendant of the nature of the charges, the maximum penalty faced, and the fact that the defendant must adhere to the rules of evidence and criminal procedure. City of Bellevuev. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984). The court conducted a lengthy and detailed colloquy with Officer on the requirements and dangers ofself-representation. The courtexplained the charges Officerfaced and the sentences he might receive if the jury convicted him. The courtemphasized thatthetrialwould be governed byprocedural rules and “byyour own admission, you don’t know all that stuff.

. . you haven’t had years[’] worth of training in this area, so you’re at a disadvantage.” Despite acknowledging the court’s concerns, Officer neverwavered from his desire to represent himself. He also signed awritten waiveracknowledging that hewould be required to “followall legal rules and procedures, including the rules ofevidence.” The court may not deny a request for self-representation because “the defendant is unfamiliar with legal rules” or over “concerns that courtroom proceedings will be less efficient and orderly than if the defendant were represented by counsel.” Madsen, 168 Wn.2d at 505, 509. The court did not 15No. 77946-0-1116

abuse its discretion in finding that Officer knowingly, intelligently, and voluntarily waived his rightto counsel and allowing him to represent himself. d. Declining to reappoint counsel Finally, Officerchallenges thetrial court’s refusal to reappoint counsel midtrial. Once a defendant has asserted his right to represent himself and made a knowing, voluntary, and intelligent waiver of counsel, a criminal defendant is no longer entitled to reappointment of counsel. DeWeese, 117 Wn.2d at 379. Following a valid waiver, the reappointment of counsel is within the court’s discretion, considering all circumstances that exist when the request for reappointment is made. Modica, 136Wn. App. at443. “[T]he degree ofdiscretion reposing in the trial court is at its greatest when a request for reappointment of counsel is made after trial has begun.” Modica, 136 Wn. App. at 443-44. A defendant’s poor performance as his or herown attorney is not, by itself, a reason to reappoint counsel. State v. Canedo-Astorga, 79 Wn. App. 518, 526, 903 P.2d 500 (1995). Citing Canedo-Astorga, Officer argues that “the request for reappointment should be granted absent reasonsto deny.” Canedo-Astorga, 79Wn. App. at525. In that case, the court allowed the defendant to proceed pro se and appointed defense counsel to serve as standby counsel. On the second day of trial, the defendant moved for the reappointment of standby counsel as his attorney. Standby counsel responded: Well, this obviously puts me in a difficult position by having to take over the case halfway through. I am familiar with the facts of the case, however, I did not preparethis case in the lastweekorsowith an eye

. . . toward trying it.

. . . I think if I’m going to be appointed back atthis pointto represent Mr. Canedo, then I would askthatthe 16No. 77946-0-1/17 trial be stopped and there be a continuance until I have such time as I need to consultwith Mr. Canedoto determinewhat it is exactlythat he wants, and thatwould not be a short process, I’m sure, given the history ofthis case. Canedo-Astorga, 79 Wn. App. at 523. Division Two of this court held that it was not an abuse of discretion to deny reappointment of counsel under these circumstances. This case presents similar facts. By the time Officer made his request, Andrews had been absentfora dayand a halfoftrial. There is no evidence in the trial record showing thatAndrews was available to immediately return to the trial.3 The State argued thatanydelaywould presenta hardship toWood, who had flown to Seattle from out of state to testify and who planned to return home that same day. The potential fordelaythatwould resultfrom reappointment ofcounsel midtrial was a sufficient reason to deny Officer’s request. The court did not abuse its discretion. 2. Sufficiency ofthe Evidence Officer contends the evidence was insufficient to convict him of unlawful imprisonment because blocking Wood’s car with his truck may have inconvenienced her but did not interfere with her ability to leave the apartment. This argument, however, ignores the evidence that Officersat bythe apartment’s doortelling hershe could not leave.

~ After briefing in this case was completed, Officer filed a supplement to his pro se statement of additional grounds. Officer attached a letter from Andrews, stating that, after Officer requested reappointment of counsel, the trial court never contacted him as to whether he was available. Andrews asserts that he was, in fact, available and could have returned as counsel for Mr. Officerat anytime without any delays to thejurytrial.” Butwe do not consider matters outside the trial record in a direct appeal. State v. McFarland, 127Wn.2d 322, 335, 899 P.2d 1251 (1995). If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means ofdoing so is through a personal restraint petition. McFarland, 127 Wn.2d at 335. 17No. 77946-0-1/18 Evidence is sufficientto support a conviction if a rational trier offact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from theevidence mustbedrawn infavorofthe Stateand interpreted moststrongly against the defendant. State v. Washinç~ton, 135 Wn. App. 42, 48-49, 143 P.3d 606 (2006). Credibilitydeterminationsand the persuasiveness ofthe evidence are forthe trier offact and are not subjectto review. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006). A person is guilty of unlawful imprisonment if he orshe knowingly restrains another person. RCW 9A.40.040(1). A person is restrained if his or movements
are restricted “without consent and without legal authority in a manner which interferes substantially with his or her liberty.” RCW 9A.40.010(6). Restraint is “without consent” if it is accomplished by physical force or intimidation. RCW 9A.40.01 0(6). Asubstantial interference is “a real ormaterial interferencewith the liberty ofanother as contrasted with a petty annoyance, a slight inconvenience, or an imaginary conflict.” State v. Robinson, 20 Wn. App. 882, 884, 582 P.2d 580 (1978). Words alone can be sufficientto establish intimidation and restraint. See State v. Lansdowne, 111 Wn. App. 882, 889, 46 P.3d 836 (2002) (when defendants restrained an insurance inspector by telling her to sit down on the couch, calling her employer and stating “this girl is not leaving here alive if you cannotgive me a damn good reason whyshe’s here,” thiswas sufficient evidence of unlawful imprisonment asto survive a Knapstad4 motion).

“State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). 18No. 77946-0-1/19 It is a defense to unlawful imprisonment that the victim had a reasonably available avenue ofescape, unless “the known means ofescape

. . . present[s] a dangeror more than a mere inconvenience.” State v. Washinciton, 135 Wn. App. at 50. But even if there is a potential escape route, the defense fails when the victim is fearful oftrying to escape. State v. Allen, 116Wn. App. 454, 466, 66 P.3d 653 (2003). Relying on State v. Kinchen, 92 Wn. App. 442, 451-52, 963 P.2d 928 (1998), Officer argues that there was insufficient evidence of unlawful imprisonment because Wood was able to leave the apartment when she wished. In Kinchen, the defendant locked his children in his apartmentwhile atwork. This court held thatthere was insufficient evidence of unlawful imprisonment because the children were able to safely get in and outvia a window orsliding door. Officer’s reliance on Kinchen is misplaced. The children in Kinchen were alone in the apartment and had the opportunity to flee out a sliding door. Here, however, Officersatdirectly nexttothefrontdoor. Hetold Wood that hewas going to staythere and thatshe could not leave. This occurred immediatelyafter Officer physically assaulted Wood and threatened to kill her. Wood testified thatshewas terrified of Officer. A reasonable jury could conclude that Wood was unable to escape via the door because she was too afraid that Officerwould hurt her. The evidence was sufficient to establish Officer knowingly restrained Wood from leaving and to supportthe unlawful imprisonment conviction. 3. Statutory Maximum Officer contends that the combined total of confinement and community custodyexceedsthe statutory maximum. We agree, as doesthe State. However, 19No. 77946-0-1120

Officer is not entitled to resentencing because a notation on his judgment and sentence will suffice. Officer was convicted of three class C felonies. See RCW 9A.36.031(2); RCW 9A.40.040(2); ROW 9A.46.020(2)(b). The maximum penalty for a class C felony is 60 months. ROW 9A.20.021(1)(c). The court imposed an exceptional sentence of60 months on each count, to be served concurrently. The court also imposed 12 months of community custody, acknowledging that, since it had imposed 60 months ofconfinement, “there may not be time to run that.” ROW 9.94A.505(5) restricts a trial courtfrom imposing a combined term of confinement and community custody that exceeds the statutory maximum. For standard range sentences, the trial court is obligated to reduce the required term of community custody when the combined time of confinement and community custody exceed the statutory maximum. ROW 9.94A.701(9). But “[b]y its plain language, ROW9.94A.701(9) applies onlytoterms ofconfinement imposed within the standard range.” In re Pers. RestraintofMcWilliams, 182Wn.2d 213, 217, 340 P.3d 223 (2014). For exceptional sentences, ‘a notation on the judgment and sentence explicitly stating that the combination of confinement and community custody would not exceed the statutory maximum” is the appropriate remedy. McWilliams, 182 Wn.2d at218. The State acknowledgesthat ifOfficerserves hisfull sentence, hewill serve moretimethanthestatutorymaximum permitted. Officer’sjudgmentand sentence does not contain the required notation informing the Department of Corrections thatthe combined term ofconfinement and community custodycannotexceed the

20No. 77946-0-1121

statutory maximum. Accordingly, we remand to the trial court to include this notation. 4. Statement ofAdditional Grounds In a pro se statement ofadditional grounds, Officercontendsthatthe court erred when it prematurely terminated his cross-examination of Wood. But a defendant’s rightto cross-examination is not absolute, and a trial court has broad discretion to regulate testimony and witness examination “so as to (1) make the interrogation and presentation effectiveforthe ascertainmentofthetruth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” ER 611(a). Officer was permitted to cross-examine Wood for approximately two and a half hours. The trial court only terminated Officer’s cross-examination atthe end ofthe day, after Officer repeatedly argued with Wood and called her a liar. Officer fails to show that the court abused its discretion in this regard. The remainder of Officer’s claims are similarly meritless. Officer contends that he was not given sufficient time in thejail library orthe use of a computer to review discovery. But this claim requires consideration of matters outside the record, which we do not consider in a direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Officeralso challengesthe credibilityofWood’stestimonyand reasserts his
own version ofthe events underlying his conviction. However, we do not reviewa 

### jury’s credibilitydeterminations. Statev. Myers, 133Wn.2d 26, 38, 941 P.2d 1102 (1997). Finally, Officer reiterates his desire to have Andrews reappointed to represent him at trial. Since this claim was adequately briefed by counsel, we do 21No. 77946-0-1/22

not address it. ~ RAP 10.10(a) (purpose of statement of additional grounds is to permit appellant, “to identify and discuss those matters related to the decision under reviewthatthe [appellant] believes have not been adequately addressed by the brieffiled bythe [appellant’s] counsel”). We remand for the trial court to add a notation to Officer’s judgment and sentence clarifying that the total term of confinement and community custody actually served may not exceed the statutory maximum. In all other respects, we affirm.



### ~ I WE CONCUR:

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