### FILED 

### OF APPEALS DIVISION 1_

11 

### 2014 OCT 114 8: 55 IN THE COURT OF APPEALS OF THE STATE OF WASH

STATE OF WASHINGTON,

v. JOHN MICHAEL BALE, 

### DIVISION II
Respondent,

Appellant. No. 44172 -1 - II

UNPUBLISHED OPINION
WoRSwICK, P.J. — John Michael Bale appeals his convictions for two counts offirst 

### degree assaultwith a deadlyweapon, and one count ofpossessing a stolen firearm. Bale argues that (1) insufficient evidence supports his assault convictions because the State failed to prove 

### that Bale intended to cause great bodily harm, and (2) insufficient evidence supports his 

### conviction forpossessing a stolen firearm because the State failed to prove that Bale knewthe gun was stolen. Bale also raises several issues in his statement of additional grounds (SAG). We hold that sufficient evidence supports Bale' s convictions fortwo counts offirst degree assault, and we affirm those convictions. But we further hold that the evidence was insufficient 

### to support Bale' s conviction for possessing a stolen firearm and we reverse this conviction and remand for an order dismissing this charge with prejudice. FACTS I. SUBSTANTIVE FACTS 

### On July2, 2012, Officers Stephen Morrison and Charles Schandel contactedthree males in a trailer park as part of a narcotics investigation. One ofthe men contacted was Bale. TheNo. 44172 -1 - II

officers requested Bale' s identification, but he claimed he was unable to find it. Morrison, 

### fearing forthe officers' safety due to Bale' s " nervous" demeanor, decided to place wrist
restraints on Bale to " detain him [ and] frisk him for weapons." 1 Verbatim Report of Proceedings (VRP) at 65 -66. Morrison reached for Bale' s wrist, but " as soon as [ Morrison] went hands on with [Bale], he start[ ed] pulling away." 1 VRP at 67. Bale then broke free and ran. 

### The officers pursued Bale, catching up to him andtackling him. When Morrison tackled Bale, Morrison heard a metallic noise, which he later recognized as a pistol being racked. The 

### officers saw Bale gripping a pistol in his right hand. Morrison noticed thatthe gun's hammer was back, indicating that the gun was cocked. Morrison testified that seeing the cocked gun put him in fear for his life because " there' s only one reason to cock a gun ... and that' s to shoot it." 

### 1 VRP at 74. The gun would not fire without being cocked, but once cocked, the gun would fire with only slight pressure on the trigger.

Schandel testified that Bale " had a death grip on that gun." 2 VRP at 153. Morrison 

### gripped the gun' s barrel in an attemptto prevent Bale from shooting. Morrison yelled at Bale to drop the gun." 1 VRP at 75. Instead, Bale turned and began to aim the gun towards Morrison' s 

### chest at a distance ofa few inches. Morrison had his hands on the gun's slide, meaningthat if fired, the gun would " more than 

### likely fire one round and malfunction." 1 VRP at 77. Morrison 

### was able to wrestthe gun awayfrom Bale' s grip. The entire struggle lasted five to ten seconds, 

### and Bale at no time attempted to pointthe gun awayfrom the officers. Bale said nothing during the struggle. Both officers were in fear ofbeing shot. 

### Bale got away again and continued to run from the officers who chased him. Finally, Morrison apprehended Bale with the use of a stun gun. Morrison thereafter disabled Bale' s gun,No. 44172 -1 - II



### which was loaded. Officers also found anylon ankle holster lying between Morrison' s patrol car and the location ofthe struggle. 

### The gun belonged to John Hagenson,who said the gun had "come up missing" around June 26. 2 VRP at 174. Hagenson suspected that his stepson Benjamin Roberts had taken the 

### gun because there had been no forced entry into Hagenson's gun safe, and when asked aboutthe
weapon, Roberts said, "[ H] e could get it back." 2 VRP at 178. Hagenson claimed that Roberts 

### and Bale were longtime close friends, and thatthey had been in contact around the date ofBale' s incident with the officers. Hagenson believed that Bale must have known Roberts had stolen the 

### weapon because "they know each other's pasts" and Roberts was not "allowedto have firearms." 2 VRP at 176, 180. II. PROCEDURAL FACTS The State charged Bale in an amended information with two counts of first degree assault for assaulting Morrison and Schandel, respectively), and one count of possessing a stolen 

### firearm. Ajury found him guilty as charged. Bale appeals. ANALYSIS SUFFICIENCY OF EVIDENCE Bale argues that insufficient evidence supports his convictions for first degree assault because the State failed to prove beyond a reasonable doubt that he intended to cause great 

### bodily harm. He argues that (1) the evidence shows he merely intended to frightenthe officers, 2) he had an opportunityto shoot and did nottake it,and (3) there was no verbal communication ofan intent to shoot. He further argues that the State failed to prove first degree assault of Schandel because Bale aimed the gun at Morrison alone. We disagree.

3No. 44172 -1 - II Bale also argues that the State failed to prove beyond a reasonable doubt that he knew the firearm was stolen. We agree. A. 

### Standard ofReview

When we review a sufficiency challenge to a conviction, we determine whether, " after viewing the evidence most favorable to the [ State], 

### any rational trier offact could have found the
essential elements" ofthe crime " beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221 -22, 616 P.2d 628 ( 1980) ( emphasis omitted). " 

### A sufficiency challenge admits the truth of the State' s evidence and accepts the reasonable inferences to be made from it." State v. O' Neal, 159 Wn.2d 500, 505, 150 P. 3d 1121 ( 2007). B. 

### First DegreeAssault — Intent To Cause Great Bodily Harm Bale first argues that the State failed to present evidence that he intended to inflict great 

### bodilyharm, ratherthan intendedto merely frighten the arresting officers. He argues that because the evidence shows he did not fire the gun when he had the chance and that he never 

### verbally communicated an intentto inflict harm,the State proved only second degree assault, which does not include the element ofintentto cause great bodily harm.

As relevant here, under RCW 9A.36.011, first degree assault occurs when a person, " with intent to inflict great 

### bodily harm ... [ 

### a]ssaults another with afirearm or any deadlyweapon or by any force or means 

### likely to produce great 

### bodily harm or death." RCW 9A.36.011( 1)( a). Intent is present when a person " acts with the objective or purpose to accomplish a result which
constitutes a crime." RCW 9A.08. 010. " Evidence of intent ... is to be gathered from all ofthe
circumstances of the case." 

### State v.Ferreira, 69 Wn.App. 465, 468, 850 P.2d 541 ( 1993) quoting State v. Woo Won Choi, 55 Wn.

### App. 895, 906, 781 P. 2d 505 ( 1989)).No. 44172 -1 - II



### Our inquiry on appeal is whether any rational trier offact could have found beyond a reasonable doubt that Bale intended to cause great bodily harm. Green, 94 Wn.2d at221 -22. 

### Here,viewing the evidence in the light mostfavorable to the State, a rational trier offact could have found beyond a reasonable doubtthat Bale drew and cocked his weapon with intent to 

### shoot Morrison and Schandel. The officers found an ankle holster along the path where Bale ran from Morrison's patrol carto the site ofthe struggle, indicating that Bale separated the holster 

### andthe gun and discarded onlythe holster. The officers sawthe gun's hammer was pulled back, 

### indicating that itwas cocked. Additionally, Bale refusedto drop the gun when commanded to do so, pointed the gun at Morrison' s chest at a close range, and pushed against Morrison' s attempts to point the gun away. 

### Regarding Bale' s argumentthat he had an opportunityto shoot and did nottake it,firing aweapon given an opportunity is neither an element offirst degree assault nor partofthe definition of intent.' See RCW 9A.36.011; RCW 9A.08.010. In addition, the evidence, viewed 

### in the light mostfavorable to the State, proves that Bale did not have an opportunityto firethe
gun. Courts have upheld first degree assault convictions on facts similar to these. For example, in State v.Anderson, Division One ofthis court held that sufficient evidence existed to



### 1 Bale points us to where the testimonies ofthe two officers conflict: Morrison testified that Bale had the opportunity to shoot [ Morrison] but did not do so," 

### whereas Schandel testified that 

### Bale never had the abilityto shoot because the officersjumped him and grabbed the gun and kept it pointed away from themselves." 

### Br. ofAppellant at 4. We resolve this discrepancy in favor ofthe State. We "must deferto the trier offact on issues involving conflicting testimony, credibility ofthe witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. 

### App. 672, 675, 935 P. 2d 623( 1997).No. 44172 -1 - II



### show thatthe defendant intended to inflict great bodily harm where the defendant "began a vigorous and prolonged attempt to take [ the victim' s] weapon 

### by force .... [ The defendant]
used both hands to push the weapon toward [the victim' s] head." 

### 72 Wn.App. 453, 459, 864 P. 2d 1001 ( 1994). The facts in Anderson are comparable to the facts here: the defendant did not fire the weapon, and yet the court determined that sufficient evidence of intent to cause great 

### bodily harm existed becausethe defendant continued to struggle with the victim and pointthe weapon at him. 72 Wn.App. at 459. There is no requirement that aweapon be fired before a jury can find intentto cause great bodily harm. 

### Regarding Bale's argumentthat he did notverbally communicate his intentto cause great 

### bodily harm,verbal communication ofathreat is nota required element offirst degree assault, nor part ofthe definition of intent. See RCW 9A.36.011; RCW 9A.08. 010. The State was 

### required to prove that Bale had the object or purpose to commit great bodily harm, notthat he communicated his desire to do so. RCW 9A.08.010. Viewing the evidence in the light most 

### favorable to the State,there was sufficient evidence to supportthejury's finding ofintent 

### through Bale' s physical actions ofremoving the gun from its holster, cocking it,pointing it atthe officers, and struggling against attempts to push the gun away. C. First Degree Assault Against Schandel

Bale argues that the State failed to prove the second count offirst degree assault — the
assault against Schandel—because Bale aimed the gun at Morrison alone. We disagree. 

## Viewing the evidence in the lightmostfavorabletothe State, Bale pulled the gun from the holsterwhile fleeing from both Morrison and Schandel. Bale pointed the gun only at Morrison, but he struggled with both officers in an attempt to get away. Schandel believed thatNo. 44172 - 1 - II 

### Bale would shoot Morrison and then immediately shoot Schandel, ifgiven the opportunity. The 

### gunwas cocked during the struggle with both officers. Taken together,these facts could have led a rational trier offact to find beyond a reasonable doubt that Bale intended to shoot both 

### officers, although he managed to pointthe gun only at Morrison. Therefore, because a rational trier offact could have found beyond a reasonable doubtthat Bale intended to cause great bodily harm to both Morrison and Schandel, sufficient evidence supports both first degree assault
convictions. D. Possession ofa Stolen Firearm—Knowledge that the Firearm was Stolen Bale next argues that the State failed to prove beyond a reasonable doubt that he knew the firearm was stolen. We agree. 

### In order forthe Stateto prove that Bale unlawfully possessed a stolen firearm, it had to prove ( 1) he possessed, carried, delivered, sold, or was in control of a stolen firearm; (2) he acted with knowledge thatthe firearm had been stolen; and (3) he withheld or appropriated the firearm to the use of someone other than the true owner or person entitled thereto. RCW 9A.56.310; RCW 9A.56. 140. " Knowledge" means that a person " is aware ofa fact, facts, or circumstances

or result described 

### by a statute 

### defining an offense; or ... has information which would lead a 

### reasonable person in the same situation to believe that facts exist which facts are described by a
statute 

### defining an offense." RCW 9A.08.010( 1)( b). Here, insufficient evidence supports the essential element that Bale knew the firearm was 

### stolen. Even accepting the State' s evidence as true andviewing all evidence inthe light most favorable to the State, no rational trier offact could have found beyond a reasonable doubt that Bale knew the firearm was stolen.

7No. 44172 -1 - II 

### The only evidence the State presented to prove this charge was thetestimony of Hagenson, the gun's true owner. He suspected his stepson Roberts ofhaving taken his gun, 

### which went missing about aweek before Bale's incidentwith the police. He said Bale and Roberts were close friends, and Hagenson thought they had been in contact around the time of the incident.

Hagenson also said that Bale and Roberts " knew each other' s pasts," so he thought Bale
would have known that Roberts was not " allowed to have firearms." Taken together, these
statements 

### by Hagenson — 

### almost all ofthem merely stating his beliefs about Roberts' activity
and Bale' s state of mind — would not permit a rational trier offact to conclude beyond a 

### reasonable doubt that Bale knewthe gun he possessed was stolen. There was no evidence, for example, that Bale received the gun from Roberts. And even if Bale knew that Roberts was not 

### allowed to have firearms, this does not lead to a conclusion that any firearm Roberts possessed 

### was necessarily stolen. Insufficient evidence supports this count, andwe reverse Bale' s conviction forpossession ofa stolen firearm.2 STATEMENT OF ADDITIONAL GROUNDS In his statement ofadditional grounds, Bale raises several additional points. He claims 

### that 1) insufficient evidence supports his conviction on several grounds, 2) the State violated his 

### rights to aspeedytrial, 3) his original attorney ofrecord violated the attorney - client privilege,4) the participation ofa prosecutor with a conflict of interest violated his due process rights, 5) the 

### court violated his Sixth Amendment right to counsel ofchoice when it denied his request to 

### 2 Bale also argues thatthe charging documentwas constitutionally deficient because itfailedto allege that Bale knew the firearm he possessed was stolen. Because we reverse his conviction for possession of a stolen firearm, we do not reach this issue.No. 44172 -1 - II



### substitute counsel, 6) he received ineffective assistance ofcounsel, 7) the county violated his due 

### process rights by denying him access to the law library, and 8) private peremptory challenges violated his rightto a public trial. Aside from the arguments relating to the charge ofpossession of a stolen firearm, these claims are without merit. I. INSUFFICIENT EVIDENCE A. No Intent To Harm

Bale first states," I had no intent of

### harming any one [ sic] and ... no weapon was pointed
at any officer at any time." 

### SAG at 2. As stated above, the question on appeal is whether any 

### rational trier offact could have found Bale' s intentto cause great bodily harm beyond a reasonable doubt, and it could. This issue therefore fails. B. 

### No Knowledge ofStolen Firearm Bale also claims that he did not know the firearm was stolen. As we stated above, 

### insufficient evidence supports Bale' s conviction for unlawful possession ofa stolen firearm, and 

### we reverse and dismiss this charge. C. No Fingerprints 

### Bale further claims thatthere was " insufficient evidence to support a guilty conviction on 

### the grounds on failing to provide finger prints [sic] on the weapon. The prosecutor putthe 

### weapon in the lab and tested itforfingerprints and my D.N.A. It came backnegative on both. This did not prove all of the elements ofthe crime." 

### SAG at 6. However, fingerprinting and 

### DNA (deoxyribonucleic acid) matching are not elements ofthe crimes forwhich Bale was
convicted. See RCW 9A.36.011. As discussed above, sufficient evidence supports his

9No. 44172 -1 - II



### convictions forfirst degree assault. This same evidence supports thejury's special verdict 

### finding that Bale was armed. This claim fails. D. 

### No Substantial Bodily Harm

Bale claims that the " evidence was insufficient to establish that the victim suffered 

### substantial bodily harm as required in orderto convict defendant offirst or second degree
assault." 

### SAG at 6. But "substantial bodily harm" is not arequirement offirst or second degree 

### assault; the State merely must provethat the defendant acted withthe intentto inflict great bodily harm to prove first degree assault. See RCW 9A.36.011. Therefore, this claim fails. II. SPEEDY TRIAL Bale claims that the proceedings violated his right to a speedy trial, arguing: " I did not 

### sign orwaiver [sic] my rights to a speedytrial. Theythreatened me ifI did not sign acourt document that waived my speedy trial rights that I would go to SAG." 

### SAG at 2. Bale similarly
argues that " 

### Kitsap county does an illegal process called ` Bind over.' 

### It is the process ofholding 

## you in district courtforsixty day' s [ sic] onfelony charges, then moving you to superiorcourt," in violation of the right to a speedy trial. 

### SAG at 5. 

### Bale waivedthe speedytrial right issue bynot raising itwithin 10 days after notice ofthe trial date. CrR 3. 3( d)( 3). 

### According to the superior court criminal rules, "[ 

### a] party who fails, for 

### any reason,to make [a motion objecting to the date fortrial] shall lose the rightto objectthat a trial commenced on such a date is not within the time limits prescribed 

### by this rule." CrR 3. 3( d)(3). Bale made no such motion. Moreover, "` [ t] rial within 60 days is not a constitutional
mandate.' 

### There is `no constitutional basis for holding thatthe speedytrial right can be

10No. 44172 -1 - II
quantified into a specified number of days or months.'" State v. Carson, 128 Wn.2d 805, 821, 912 P.2d 1016 ( 1996). Therefore, this claim fails. III. ATTORNEY -

CLIENT CONFIDENTIALITY 

### Bale argues that his attorneyviolated attorney - client confidentiality by "willfull[y] disclos[

### ing] information to the prosecuter [ sic] regarding evidence (the gun)." SAG at 4. He alleges that this disclosure violated Rule 1. 6 ofthe Rules of Professional Conduct. Although Bale' s SAG claims that certain discussions occurred on the record, there is no evidence ofthis discussion in our record on appeal, and we do not consider it. RAP 2.5; State v. McFarland, 127 Wn.2d 322, 332 -

34, 899 P.2d 1251 ( 1995). IV. DUE PROCESS VIOLATION: PROSECUTOR' S PARTICIPATION Bale argues that his due process rights were violated when the prosecutor continued on 

### the case. He avers that he requested the removal ofboth his counsel and the prosecutor. Then, 

### after aweek ofinvestigation into the request by thejudge, the prosecutor returned to the case. Bale argues that this violated his due process rights. This claim refers to matters outside the 

### record, and we do not consider it. RAP 2.5; McFarland, 127 Wn.2d at 332 - 34. V. SIXTH AMENDMENT RIGHTTO COUNSEL 

### Similarly, Bale argues that his Sixth Amendment rightto counsel was violated whenthe judge did not appoint him new counsel after he alleged a " complete breakdown of 

### communication" with defense counsel. SAG at 4. On October 4, 2012, the court heard Bale' s 

### motion to substitute counsel. In his motion, Bale named his grievances, including defense counsel' s refusal to send various documents to Bale, and his apparenttendency for

11No. 44172 -1 - II



## tardiness.3 The court denied the motion,finding thatthere was " an insufficient factual basis" for it. VRP (Oct. 4, 2012) at 5. The court also explained to Bale that "when you are represented by

an attorney, all motions are to be filed 

### by your attorney, not 

### by yourself." VRP (Oct. 4, 2012) at 5.


### 3 Bale explained his grievances to the trial court as follows: 

### I had asked [ defense counsel] the first day I met him for discovery and police reports that he failed to provide. Two, weapon fingerprinted. He said it wouldn' t matter. 

### Now waiting to do anything until the prosecutor had 

### basically —

### I had asked him onthe first day. You 

### know,that was supposed to happen a long time ago, and it hasn't. Three, let me use law 

### library. He said yes. Never put motions in. And I reminded him repeatedly. This was, 

### basically, a 

### long time ago. And I kind of — I kind of know a little bit about the law, and I have —

### So, basically, it's been months now. We' re 

### basically — 

### have been in custody for almost 100 days now and he had never —

### Basically, I .. . He' s always late to court. 

### Every time I'm here, I'm always wondering ifhe's going to show up. 

### I have called repeatedly only to have rude desk lady answer and / or a full message machine. I have not — 

### Or he leaves workearly. I have not— 

### And with the Kitsap CountyJail,we're out on the uppertierand we basically only have an hour and a half,and, basically, he' s gone by the time I can get outto call. And I have asked him to read police reports in the messages. I have entered motions; never checked up on. I have entered motions in the courtroom; they have not been heard, not one of them. 

### I personally have entered motions. I have mailed them. I got the letters back and everything. Previously, we were supposed to have trial last — what was it, what was itthe lasttime I was here in court, and the investigator came to me aweek before, aweek before we were supposed to go to trial. 

### I have objectedtwice because I knowmy rights and I haven'twaived my rights. 

### I have notwrote my rights away. I have notsigned. Because I knowonceyou sign that piece ofpaperthat says ifyou objectwithin ten business days right there stated on it, and I have objected twice. I justthink he' s unprofessional. I don'tthink he' s well prepared to defend me. I have entered —

### Okay. We have already gone over that one. Not — Time has been —So I just—There' s just - I just don't have faith in him right now or —

And I have tried to work it out, me and him tried to work it out. But I just don't have faith in him. VRP (Oct. 4, 2012) at 3 -5.

12No. 44172 -1 - II The trial court has discretion to determine whether " an indigent defendant' s dissatisfaction with his court-appointed counsel is meritorious andjustifies the appointment of

new counsel." State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 ( 1991). A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate. 117 Wn.2d. at 375- 

### 76. Here, the trial court heard Bale' s arguments for removing and substituting defense counsel, and the trial court ruled thattheywere merely "personal" conflicts not warranting substitution of counsel. This decision was within the trial court's discretion. VI. INEFFECTIVE ASSISTANCE OF COUNSEL Bale next argues that he received ineffective assistance of counsel, in violation ofthe 

### Sixth Amendment. He argues that defense counsel failed to obtain for him "compulsory process for obtaining witnesses in [my] favor." SAG at 4.



### When an ineffective assistance claim is raised on appeal, the reviewing court may
consider only facts within the record." State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011). 

### Bale supplies no explanation forthis claim; he does not say, and the record does not show,when defense counsel failed in an attempt to call a witness. Under Grier, therefore,we have no basis 

### for evaluating the ineffective assistance ofcounsel claim,becausethe alleged flaw is not apparent in the record, and we do not consider it. 171 Wn.2d at 29; see also RAP 2.5; McFarland, 127 Wn.2d at 332 - 34. VII. DUE PROCESS RIGHTS TO COUNTY LAW LIBRARY 

### Bale argues that his due process rights were violated when he could not use the county 

### law library. The factual basis for his argument is unclear; he moved for access to the Kitsap County Jail law library, andthe court granted his motion.

13No. 44172 -1 - II Prisoners have a " fundamental constitutional right of access to the courts," which 

### requires prison authorities to assist inmates in the preparation and filing ofmeaningful legal
papers 

### by providing prisoners with adequate law libraries." Bounds v. Smith, 430 U.S. 817, 828, 52 L.Ed. 72, 97 S. Ct. 1491 ( 1977). However, this right "ensure[s] a meaningful pro se defense." State v. Bebb, 108 Wn.2d 515, 524, 740 P. 2d 829 ( 1987) ( emphasis added). Bale was 

### represented by counsel. More importantly,the court granted his motion for access to the law library. It is unclearfrom the record whetherthe County ignoredorotherwise failedto give 

### effectto the court order granting access; however,the trial court granted his motion foraccess, and therefore did not violate his rights. VIII. PRIVATE PEREMPTORY CHALLENGES 

### Bale finally argues thatthe trial violated his Sixth Amendment rightto a public trial because the parties exercised private peremptory challenges. Bale explains that "[ t]he court 

### directed counsel to exercise peremptory challenges by passing apiece ofpaper back and forth. The courtthen excusedjuror' s [ sic] and seated other venire members in the excusedjuror's
seats." SAG at 5. Bale claims that this procedure violated his right to a public trial. The record does not contain the transcript ofvoir dire. When a defendant raises a public trial right claim for the first time on appeal, "' the trial record must be sufficient to determine the
merits ofthe claim.' [ 

### T]he appellant bearsthe responsibilityto provide a record showing that .. .

a closure occurred in the first place." 

### State v. Koss, No. 85306 -1, slip op. at 11 -12 (Wash. Sept. 25, 2014) ( citations omitted). 

### There are no facts in the record supporting Bale' s claim thatthe 

### court conducted the peremptory challenges privately,and we do not consider it. RAP 2.5; McFarland, 127 Wn.2d at 332 - 34.

14No. 44172 -1 - II CONCLUSION 

### We affirm Bale' s convictions on both counts offirst degree assault with adeadly weapon. However, because insufficient evidence supports it,we reverse his conviction for the 

### count ofpossessing a stolen firearm and remand with instructionsto dismiss with prejudice. A majority ofthe panel having determined thatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
Maxa,

15