### FILED 

# COURT OFAPPEALS DIVISION II 2015 JUN - 4 

### AM 8: 36 ST E' 

### WASHINGTON BY 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO DIVISION II STATE OF WASHINGTON, No. 45736 - 9 -I1 Respondent,

v. UNPUBLISHED OPINION ALLEN D. PROSHOLD, Appellant. MAxA, J. — 

### Allen Proshold appeals his convictions offirst degree kidnapping (domestic violence) and second degree assault (domestic violence) and the imposition of legal financial obligations (LFOs) as part of his sentence. We hold that ( 1) the trial court did not violate his right to counsel in handling his request for new trial counsel, (2) the trial court' s instruction on the definition of "abduct" was not ambiguous, (

### 3) thetrial court did not err in allowing thejury 

### to deliberate knowing that one ofthejurors had to leave at a certain time to catch atrain, (4) defense counsel did not provide ineffective assistance ofcounsel by failing to askthat an
alternative juror substitute for ajuror that had to leave, (5) Proshold cannot challenge the trial court' s imposition of LFOs because he did not object below, and (6) Proshold' s assertions in his statement ofadditional grounds (SAG) have no merit. Accordingly, we affirm Proshold' s
convictions and sentence.45736 - 9 -II
FACTS 

### Proshold and Kristy Pruett lived in Proshold's van. On August 1, 2012, Proshold waited 

### in his van while Pruett went to her drug dealer's home to buy heroin. According to Pruett, when she returned to the van Proshold looked like awild man, as he hadjust injected a very large 

### amount ofmethamphetamine. Pruett was unable to purchase any heroin and, according to Pruett, 

### Proshold demanded that she give him the money she had planned to use. According to Pruett, after she said no, Proshold choked her, ripped offher underwear, yanked down her bra, and 

### searched her forthe money, including inside hervagina. During these events, Proshold was 

### driving erratically and Pruettwas screaming out ofthe windowfor someone to call 911. When the van passed through a neighborhood, two men heard Pruett' s screams, got in a, 

### truck, and followed the van. When they found the van parked at a nearby house, they saw Proshold get out and walk into the house' s backyard. Both men testified that Pruett was beaten 

### up, crying, and hysterical, was holding her panties, and stating that she had been raped. She gave similar accounts to the police. The State charged Proshold with second degree rape, attempted first degree robbery, 

### second degree assault, and first degree kidnapping. During a readiness hearing on.October 24, 2013, Proshold asked for a new attorney: 

### Your Honor, my attorney is an incompetent goob. He's derelict in his duties. I' m looking at a life sentence. I' m going to trial next week. There are three potential witnesses I asked him to talk to and he hasn' t; there' s a matter I asked him to look into the first time we met and he hasn' t. I asked him point - blank yesterday what he' s done for my case, and his one and only answer was -- was listened to some audio recordings. Inadequate representation. I would like another attorney, please.

245736 - 9 -II 

### Report of Proceedings (RP) at 1 -2. Proshold' s attorney then explained to thejudge that he would like a continuance to further prepare and that he was only recently able to interview Pruett. After 

### granting a continuance,the trial court asked defense counsel ifhe believed that he still could adequately prepare and workwith Proshold. Defense counsel said thathe could. The trial court then denied the motion for new counsel, ruling:

Mr. Proshold, I' m not going to grant that motion today. That' s not -- you can bring 

### thatagain. I' m going to have you and [defense counsel] talkafterhe' s had achance to go over what he' s been able to do at this point and what his plans are. If you want to come back, we' ll chat about it again. RP at 7. Proshold did not again raise the issue or request new counsel. Before trial began, the bailiff informed the trial court and counsel thatjuror 5 had a train 

### ticket for 3: 00 PM the following Monday. Thejury began deliberations on Friday, butwas unable to reach averdict that day. At 8: 50 PM, the trial court released thejury until the following Monday. On Monday morning,thejury indicated that itwas at an impasse and the trial court polled thejury foreman to see if there was a possibility of reaching verdicts.' The foreman said 

### thatthere was a reasonable probability thatthey could reach averdict on threeofthe four counts. The trial court then told them to continue deliberations. The trial court suggested that it would 

## recess deliberations ifnecessary. At2: 19 PM, thejury reached verdicts on all four counts. Thejury acquitted Proshold ofthe rape and attempted robbery charges, but it found him guilty ofassault and kidnapping and made a special finding that the matter involved domestic violence. In sentencing Proshold, the trial court used apreprintedjudgment and sentence

1 Juror 5 brought her luggage with herto court, which was about 15 minutes from the train station. 345736 - 9 -II 

### document that included a boilerplate section indicating thatthe court was making a finding that 

### Proshold had the ability or future abilityto pay LFOs. Proshold appeals his convictions and

sentence. ANALYSIS A. REQUEST FOR NEW COUNSEL 

### Proshold argues that the trial court conducted an inadequate inquiry into his request for new counsel. He claims that the trial court failed to ask specific and targeted questions in order to make a meaningful evaluation ofthe problem and an informed decision. We disagree. We review a trial court' s refusal to appoint new counsel for an abuse of discretion. State

v. Lindsey, 177 Wn. App. 233, 248, 311 P. 3d 61 ( 2013), review denied, 180 Wn.2d 1022 ( 2014). A trial court abuses its discretion where its decision is manifestly unreasonable or based on untenable grounds. Id. at 248 - 49. A decision is based on untenable grounds if it rests on facts 

### unsupported in the record or was reached by applying the wrong legal standard. Id.at 249. 

### When reviewing atrial court's refusal to appoint new counsel, we consider (1) the extent ofthe 

### conflict, (2) the adequacy ofthetrial court's inquiry, and (3) the timeliness ofthe motion. Id. None ofthese factors shows an abuse of discretion here. Proshold' s complaint at the 

### October 24 readiness hearing was that his attorney had failed to interviewwitnesses or 

### adequately prepare fortrial. Defense counsel acknowledged that he needed more time fortrial preparation and he asked for a continuance to better prepare. The trial court granted the continuance and asked Proshold to again raise the issue if he and defense counsel could not resolve their differences. Under these circumstances, the trial court appeared to understand the extent ofthe conflict and allowed the continuance to resolve the conflict.

445736 - 9 -II Further, after this initial discussion and after the trial court granted a continuance, Proshold did not again raise the issue or request new counsel. This fact suggests that any conflict
was resolved before trial. 

### We hold that the trial court did not abuse its discretion in the handling of Proshold' s request for new counsel. B. KIDNAPPING INSTRUCTION 

### Proshold argues that the trial court' s kidnapping instruction defining the term " abduct" was ambiguous and allowed thejury to convict him without proofofall the essential elements of the crime. We disagree.2 

### We review ajury instruction challenge de novo and evaluate the challenge in the context ofthe instructions as a whole. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 ( 2007). 

### Instructions are sufficient ifthey are supported by substantial evidence, allow the parties to argue their theories ofthe case, and when read as awhole properly inform thejury ofthe applicable law." State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 ( 1998). When 

### reviewing ajury instruction claim, we give deference to atrial court's wording ofits instructions. State v. O' Hara, 167 Wn.2d 91, 108 n.4, 217 P.3d 756 (2009).

As charged here, "[ 

### a] person is guilty ofkidnapping in the first degree ifhe or she intentionally abducts another person with intent:... ( 

### c) To inflict bodily injury on him or her."
2 Proshold acknowledges that he did not object below, but claims thatthis was a manifest constitutional error that we can review for the first time on appeal under RAP 2.5( a)( 3). 

### Although we disagree thatthejury instruction was erroneous, we exercise our discretion under RAP 2.5( a) to address an issue raised for the first time on appeal and consider the issue on the merits.

545736 - 9 -II
RCW 9A.40. 020( 1). " ` 

### Abduct' means to restrain a person by either (a) secreting or holding him or her in a place where he or she is not likelyto be found, or (b) using or threatening to use deadly force." Former RCW 9A.40.010( 1) ( 2011). 3

The trial court instructed thejury that "[ a]bduct means to restrain a person by either 

### secreting or holding the person in aplace where that person is not likelyto be found or using or threatening to use deadly force:" Clerk' s Papers at 29. The only difference between the instruction and the statutory definition is the omission ofthe "( a)" and "( b)" notations. 

### Proshold argues thatthis instruction created an ambiguity because thejury could have interpreted the language as 

### defining two means to accomplish kidnapping: ( 1) restraining a 

### person by eithersecreting orholding the person in aplace where that person is not likelyto be found, or (2) using or threatening to use deadly force. Interpreted this way, the second means 

### would not contain the statutory element ofrestraint and would allowthejuryto convict him of 

### kidnapping without proofofrestraint. He argues thatthis ambiguitywas particularly harmful because he testified that he did not restrain Pruett andjurors could have believed that he did not restrain her but that he did threaten or assault her.

Although the better practice would have been to include the "( a)" and "( b)" notations that 

### were used in the statute, we disagree that removing them from the trial court' s instruction created 

### any ambiguity. The structure ofthe sentence andthe verb tenses used make it clearthattheterm abduct" means "to restrain a person" in one oftwo ways: by "secreting or holding" that person
or " using or threatening to use deadly force." Ajuror would understand that the State had to
3 RCW 9A.40.010 was amended in 2014, but this amendment did not affect the subsection cited. LAWS of 2014, ch. 52, § 2. 645736 - 9 -II 

### show restraint in addition to either "secreting orholding" or "using orthreatening to use deadly force." 

### Therefore, we hold that the trial court did not error in instructing thejury on the definition of "abduct." C. JURY DELIBERATIONS Proshold argues that he was denied his rightto a fair trial because thejurors were pressured to return a verdict becausejuror 5 had to leave to catch a train on the afternoon ofthe 

### lastday ofdeliberations.4 We disagree. The Sixth Amendment to the United States Constitution and article I, sections 3 and 22 of 

### the Washington Constitution guarantee a defendant the right to a fairjury trial. This right 

### includes "the rightto have eachjuror reach his verdict uninfluenced by factors outside the evidence, the court' s proper instructions, and the arguments of counsel." State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 ( 1978). 

### A claim thatthe trial court coerced ajury verdict can be raised for the first time on appeal. State v. Ford, 171 Wn.2d 185, 188, 250 P. 3d 97 (2011). To prevail, the appellant must 

### establish a reasonably substantial possibility that the trial court's intervention improperly influenced the verdict. Id.at 188 -89. We examine the totality ofthe circumstances in assessing 

### whetherthe appellanthas made an affirmative showing ofimproper influence. Id.at 189. 

### A trial court can violate a defendant' sjurytrial right by imposing time pressures on ajury to return a verdict. See State v. Crowell, 92 Wn.2d 143, 148, 594 P. 2d 905 ( 1979) ( bailiff erred

4 Proshold also notes this same argument in his SAG. Because appellate counsel addressed this 

### issue in his supplemental brief,we do not separately address Proshold' s SAG claim on this ground.45736 - 9 -II
in telling

### jury it needed to return a verdict 

### by a certain time); Boogaard, 90 Wn.2d at 739 - 40 

### trial court impermissibly suggested thatjury needed to return averdict within a halfhour. However,the same rule does not applywhenjurors have their own time constraints. In State v.Jackman, the defendant alleged that he was denied a fair trial because thejury may have hastened its deliberations because the foreman was overdue for a vacation. 113 Wn.2d 772, 777, 783 P. 2d 580 ( 1989). Our Supreme Court disagreed and distinguished both Boogaard and Crowell. The court stated that "[ i] mportant distinctions exist ... between a case where a court official urges jurors to haste and a case where thejurors have their own motives for haste. In the 

### former situation,jurors suffer an outside influence on their decisionmaking; in the latter, only their own ` motives[,] ... intentions and beliefs' guide them." Jackman, 113 Wn.2d at 779 

### quoting Coxv. Charles WrightAcad.,Inc., 70 Wn.2d 173, 179 -80, 422 P.2d 515 ( 1967)). This case involves ajuror' s own time constraints, notjudicial imposition oftime 

### pressures. Neither the trial court nor the bailiffencouraged thejury to hasten its deliberations. Instead,the trial court tookthe proper course and allowed thejury to continue deliberating. In 

### fact,the trial court suggested that it would recess deliberations ifnecessary. Proshold fails in his 

### burden ofshowing a reasonably substantial possibility ofjudicial influence on thejury's verdict. Ford, 171 Wn.2d at 188 -89. 

### We hold thatthe trial court did not violate Proshold' s right to afairjury trial by allowing juror 5 to deliberate despite the fact that she had to leave at a certain time to catch a train.

845736 - 9 -II
D. INEFFECTIVE ASSISTANCE OF COUNSEL Proshold argues that defense counsel' s failure to request thatjuror 5 be excused and a substitutejuror brought into deliberations denied him his right to effective assistance of counsel. We disagree. We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 (2009). To prevail on an ineffective assistance of counsel claim, the defendant must show both that (1) defense counsel' s representation was deficient, and (2) the deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 - 33, 246 P.3d 1260 (2011). Because we held above thatjuror 5' s conduct did not taint the fairness ofthe trial, 

### trial counsel had no obligation to object to the deliberations continuing withjuror 5 empaneled. Therefore, we hold that Proshold cannot establish that defense counsel' s performance was 

### deficient orthat Proshold suffered any prejudice, and that his claim fails. E. LEGAL FINANCIAL OBLIGATIONS 

### Proshold' sjudgment and sentence contains a finding that he had the ability to paythe 

### LFOs imposed. Proshold did not challenge this finding during sentencing, andwe generally do not consider issues raised for the first time on appeal. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492 (2013), remanded, Wn.2d , 344 P. 3d 680 (2015). 

### Our decision in Blazina, nearly seven months before Proshold' s sentencing, provided notice that the failure to object to LFOs during sentencing waives a related claim oferror on appeal. Id. As our Supreme Court noted in reviewing our decision in Blazina, an appellate court may use its discretion to reach unpreserved claims of error. Blazina, 344 P. 3d at 681. We decline to exercise such discretion here.
945736 - 9 -II
F. SAG ASSERTIONS

1. Victim' s Pants as Physical Evidence 

### Proshold argues thatthe State violated his due process rights by not introducing into evidence Pruett' s undamaged pants at trial. Although Pruett testified that she was wearing a 

### dress, Proshold testified that she was wearing pantsjust prior to the time ofthe assault. He argues that because the pants fit hertightly, it would have been impossible to forcibly remove 

### them without ripping them, suggesting that she tookthem offvoluntarily. We reject Proshold' s argument. Under both the United States and Washington constitutions, due process in criminal prosecutions requires fundamental fairness and a meaningful opportunity to present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474 - 75, 880 P. 2d 517 ( 1994). 

### To satisfy due 

### process, the prosecution has adutyto disclose material exculpatory evidence and a related duty to preserve it. Id. at 475. The State' s failure to preserve evidence that is material and 

### exculpatoryviolates a defendant's rightto due process and requires that the charges against the defendant be dismissed. Id. 

### Proshold' s claim fails fortwo reasons. First,there is no showing thatthe State withheld this evidence from the defense. The pants were taken into evidence and thus available to both the State and the defendant. Second, evidence about how the pants fit the victim is not in the 

### record andtherefore not properly before us on appeal. We do not address claims based on facts outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 337 - 38, 899 P.2d 1251 1995).

1045736-9- 11
2. Victim' s Mental Health History 

### Proshold argues thatthe trial court erred in preventing him from examining Pruett about 

### her mental health history because doing so seriously undermined his defense. He argues that the evidence would have shown her pattern ofbehavior and willingness to go to the hospital, 

### undermining hertestimony at trial that she did notwantto go to the hospital. We disagree that the trial court erred. Proshold did not present a proper foundation for admission of Pruett' s mental health 

### history into evidence. Proshold offered no evidence ofPruett's mental health history,no evidence that she had been involuntarily committed, and no evidence that this past behavior, 

### even iftrue, related to her behaviorthat day. Therefore, we hold that thetrial court did not abuse its discretion in excluding this evidence.

3. Credit For Time Served Proshold argues that hisjudgment and sentence was amended on March 2, 2014, to 

### remove an additional 39 days ofcredit fortime served when thattime already had been 

### subtracted at his original sentencing. However,this is a matter outside the appeal record. As noted above, we do not address claims based on facts outside the record on direct appeal. McFarland, 127 Wn.2d at 337 - 38. Therefore, we do not consider this claim.

1145736 - 9 -II
We affirm Proshold' s convictions and sentence. 

### Amajority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

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