Opinion
No. 34149-2-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00356-0, Leila Mills, J., entered December 2, 2005.
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, Orchard, WA.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Orchard, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Richard Donnell Smith appeals his convictions of first degree rape, two counts of second degree assault, unlawful imprisonment, first degree unlawful possession of a firearm, violation of a court order, and tampering with a witness. Smith argues that his rape and assault convictions violate double jeopardy and should merge or at least constitute the same criminal conduct for sentencing. He also contends that the trial court should have instructed the jury that it had to unanimously agree on what conduct formed the basis for the assault convictions. Finally, Smith faults his counsel for various aspects of his representation during trial. Finding no reversible error, we affirm.
FACTS
Pamela Lagrua and her boyfriend encountered Richard Smith, Lagrua's former boyfriend, at a bar in Bremerton. After the bar closed, Lagrua got a ride to Smith's apartment because she thought her boyfriend and Smith were going there to fight. A number of people gathered at the apartment to drink and party, but Lagrua's boyfriend did not show up. Lagrua testified that although she drank a lot that night, she did not blackout and had no trouble recalling the night's events.
The record is not clear regarding the correct spelling of the victim's last name. For purposes of this opinion, we will use the spelling found in the State's brief.
Smith has a child with Lagrua. The two did not have a romantic relationship during the relevant time period.
At some point during the party, Smith confronted Lagrua in the bathroom and put his hand around her neck and pushed her against the wall. Smith released Lagrua when she started crying.
Later, in front of the other party goers, Lagrua "got mouthy with [Smith]" and he "choked" her. Report of Proceedings (RP) at 186. She said that this time he put both hands around her neck and pushed her up against the wall, cutting off her breathing "[a] little bit." RP at 187.
After the other party goers left, Smith ordered Lagrua to go to his bedroom, which she understood to mean that he wanted to have sex with her. Lagrua refused and said that she did not want to have sex. Smith then dragged her into the bedroom where he hit her on the head with what Lagrua thought was a gun. Smith told her "to be quiet and just get this over with." RP at 190. He then sat on her and choked her with both hands, cutting off her breathing and causing a "[t]ingly" feeling in her face. RP at 190. Lagrua lost consciousness for a moment, reviving only after Smith punched her in the face. Smith then asked Lagrua, "You don't think I'll kill you?", to which she replied, "Go ahead and kill me." RP at 191. Smith then grabbed a glass beer bottle, broke it, and cut Lagrua's arm. Smith admitted at trial that he was angry and that he told Lagrua he would kill her; he explained that he was joking around and did not really mean it.
Smith wrapped a t-shirt around the cuts on Lagrua's arm and again said he wanted to have sex with her; she again refused. Smith then forced her to have sex with him. During intercourse, Smith held a razor blade and later a hammer near her face. Smith stopped when Lagrua started dry heaving.
Smith then offered to give Lagrua a ride home. On the way to Lagrua's mother's house, Smith stopped at an automated teller machine (ATM) and retrieved some money, which he tried to give Lagrua. Lagrua refused the money because she believed Smith was attempting to buy her silence. When Smith dropped Lagrua off at her mother's house, she was bleeding and crying. Lagrua's mother and sister asked her what had happened and Lagrua said, "[Smith] did this." RP at 201-02. Lagrua had bruises on her cheek, neck, arms, and legs, and now has a scar on her arm from the cuts she received.
Lagrua described the assaults and rape to Marquell Lewis, a sexual assault nurse examiner. Lewis found several lacerations, marks, and bruises during a vaginal examination. She also noticed bruising on Lagrua's cheeks and broken capillaries on her chin, consistent with strangulation. Jane Schupay, a nurse practitioner, testified that the broken capillaries on Lagrua's chin were consistent with strangulation. Lewis also found bruises on Lagrua's left breast, left arm, and thighs, and two lacerations on her left wrist.
Smith admitted that he pushed Lagrua up against the wall in the bathroom and held her there, but he testified that he never choked her. He claimed that Lagrua cut her own arm with the broken beer bottle and that he wrapped her arm in a t-shirt and suggested they go to the hospital. He said that Lagrua refused because she was embarrassed about a hand imprint she still had on her face from his slap. Smith claimed that after the beer bottle incident, the two went into the bathroom and when they returned to the bedroom, Lagrua initiated the sex. Smith also admitted that he threatened Lagrua with a hammer, but he claimed it happened before they had intercourse.
The State charged Smith with (1) first degree rape with a domestic violence special allegation and two special allegations that Smith was armed with a deadly weapon, specifically a razor blade and a hammer (count I); (2) second degree assault, under the deadly weapon prong, with a domestic violence special allegation, a sexual motivation special allegation, and a special allegation that Smith was armed with a deadly weapon, specifically a beer bottle (count II); (3) second degree assault under the reckless infliction of substantial bodily harm prong with special allegations of domestic violence and sexual motivation (count III); (4) unlawful imprisonment, with special allegations of domestic violence and sexual motivation (count IV); (5) first degree unlawful possession of a firearm (count V); (6) violation of a court order, with special allegations of domestic violence and sexual motivation (count VI); and (7) tampering with a witness, with a domestic violence special allegation (count VII).
A jury convicted Smith as charged, but it found that the State did not prove the sexual motivation special allegations attached to count III and count IV.
The principal issues on appeal are whether (1) Smith is entitled to some relief from his multiple convictions because they violate double jeopardy, (2) the assaults merged with the rape or each other, or (3) the crimes were essentially the same criminal conduct for sentencing. In addition, Smith contends that the trial court should have instructed the jury on unanimity and that his counsel failed to effectively represent him.
ANALYSIS I. Double Jeopardy
Smith first claims that his convictions for first degree rape and second degree assault violated the double jeopardy provisions of the state and federal constitutions. Smith did not raise double jeopardy concerns below, but a party may raise a double jeopardy violation for the first time on appeal because it is a manifest error of constitutional magnitude. RAP 2.5(a); State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000) (citations omitted).
Article I, section 9 of the Washington State Constitution, and the Fifth Amendment to the federal constitution prohibit multiple prosecutions or punishments for the same offense. State v. Baldwin, 150 Wn.2d 448, 454, 78 P.3d 1005 (2003). Within this constraint, however, the legislature has the authority to define criminal conduct and specify its punishment. Baldwin, 150 Wn.2d at 454 (citing State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995)). And while the State may bring multiple charges arising from the same criminal conduct in a single proceeding, the court may not enter multiple convictions for the same offense without offending double jeopardy. State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005) (citing State v. Michielli, 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997) and State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983)).
"`Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.'" Freeman, 153 Wn.2d at 771 (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). We look for legislative intent in the statutes' language and structure, the legislative history, by asking whether the two statutes are aimed at eliminating different evils, or through any other source of legislative intent. Freeman, 153 Wn.2d at 773 (citing Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)).
Where the statutory language does not shed light on legislative intent, we turn to Blockburger, or "same evidence" test — essentially another measure of legislative intent. See State v. Louis, 155 Wn.2d 563, 569-70, 120 P.3d 926 (2005). Under the "same evidence" test, a trial court violates defendant's double jeopardy rights if it convicts him of offenses that are identical in fact and law. Calle, 125 Wn.2d at 777 (citing State v. Johnson, 96 Wn.2d 926, 933, 639 P.2d 1332 (1982)). In considering whether the crimes' elements differ, we do not engage in an abstract analysis of their elements. Rather, we ask whether each crime requires proof of a fact that the other does not. Freeman, 153 Wn.2d at 772 (citing Orange, 152 Wn.2d at 817). If so, we presume that the crimes are not the same offense for double jeopardy purposes. Freeman, 153 Wn.2d at 772 (citing Calle, 125 Wn.2d at 777).
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
To prove first degree rape, the State presented evidence that Smith threatened Lagrua with a hammer and a razor blade while forcing her to have sexual intercourse with him. To prove count II, second degree assault with a deadly weapon, the State presented evidence that Smith cut Lagrua with a broken beer bottle. To prove count III, second degree assault by infliction of substantial bodily harm, the State offered evidence that Smith choked Lagrua until she lost consciousness. Thus, the State used different facts to support each assault and the forcible rape charge. And proof of any one count did not necessarily prove any other count. See Orange, 152 Wn.2d at 816 (double jeopardy violation more likely if proof of one crime also supports conviction of the other) (quoting State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896)).
RCW 9A.44.040 defines first degree rape as follows:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
. . . .
(c) Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious.
RCW 9A.44.040(1)(a), (c).
RCW 9A.36.021, the second degree assault statute, provides, in relevant part:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
. . . .
(c) Assaults another with a deadly weapon.
Finally, Smith argues that his second degree assault convictions violate double jeopardy. He urges us to view the assaults as a single "unit of [prosecution]." Br. of Appellant at 14 (citing State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998)). The "unit of prosecution" is the legislatively defined scope of the criminal act. Adel, 136 Wn.2d at 634. Double jeopardy protects a defendant from multiple convictions under the same statutory provision for committing just one criminal act. Adel, 136 Wn.2d at 634 (citing Bell v. United States, 349 U.S. 81, 83-84, 75 S. Ct. 620, 99 L. Ed. 905 (1955)). Here, the State charged Smith under two distinct statutory provisions, with two separate counts of second degree assault for two separate acts, cutting Lagrua with the beer bottle, and choking her. RCW 9A.36.021(a), (c).
RCW 9A.36.021(1)(c) states that a person commits second degree assault when, under circumstances not amounting to first degree assault, he assaults another with a deadly weapon. Thus, assaulting another with a deadly weapon is the criminal activity measured by a single unit of prosecution. See State v. Smith, 124 Wn. App. 417, 432, 102 P.3d 158 (2004), review granted, 154 Wn.2d 1020 (2005). And RCW 9A.36.021(1)(a) provides that a person commits second degree assault when, under circumstances not amounting to first degree assault, he intentionally assaults another and thereby recklessly inflicts substantial bodily harm. Therefore, intentionally RCW 9A.36.021(1)(a), (c). assaulting another and recklessly inflicting substantial bodily harm is the criminal activity measured by the single unit of prosecution listed in RCW 9A.36.021(1)(a). Accordingly, because Smith assaulted Lagrua with a beer bottle, which the jury determined constituted a deadly weapon, and because Smith recklessly inflicted substantial bodily harm when he choked Lagrua into unconsciousness, his acts constituted two assaults, resulting in two units of prosecution.
Smith's rape and assault convictions do not violate double jeopardy.
II. Merger
Smith argues that his second degree assault convictions should merge into the first degree rape conviction, resulting in a single offense.
When conduct that the legislature criminalizes separately raises the degree of another criminal offense, we presume that the legislature intended to punish both crimes through the greater crime's sentence. Freeman, 153 Wn.2d at 772-73 (citing Vladovic, 99 Wn.2d at 419). Thus, crimes merge when proof of one is necessary to prove an element or the degree of the other. Vladovic, 99 Wn.2d at 419.
Here, the State did not need to prove both second degree assaults (broken bottle assault and choking assault) to prove the rape (threat of razor and hammer). Accordingly, the jury could have convicted Smith of first degree rape and acquitted him of either the assaults. The assaults do not merge with the rape. See Vladovic, 99 Wn.2d at 419.
III. Jury Instructions — Unanimity
Smith argues that the trial court should have instructed the jury that it had to unanimously agree on the facts supporting each conviction.
Where the defendant commits several distinct criminal acts, but the State charges only one count, the jury must make a unanimous finding as to which particular act constituted a crime. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988); State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). "To ensure jury unanimity in multiple acts cases, . . . the State [must] elect the particular criminal act upon which it will rely for conviction, or . . . the trial court [must] instruct the jury that all of them must agree that the [State has proved] the same underlying criminal act . . . beyond a reasonable doubt." Kitchen, 110 Wn.2d at 411 (citing Petrich, 101 Wn.2d at 572).
With respect to counts I and II, the State proved only one criminal act for each crime. For instance, the State claimed that Smith threatened Lagrua with a hammer and a razor while he raped her. Thus, the jury did not have to choose between multiple threatening acts to convict Smith of rape. Similarly, the State claimed that Smith committed second degree assault with a deadly weapon when he cut Lagrua with a broken beer bottle. Again, the jury did not have to choose between multiple acts to convict Smith of count II. In addition, both the State and defense counsel argued in closing that count II involved an assault with a broken beer bottle.
With respect to count III, however, the State presented evidence of several distinct criminal acts that could support a second degree assault conviction but charged Smith with only one count of second degree assault by substantial bodily harm. And the trial court did not provide a unanimity instruction to the jury. Thus, we must determine whether the State elected the particular act on which it relied to convict Smith on count III. See Kitchen, 110 Wn.2d at 411 (citing Petrich, 101 Wn.2d at 572).
The State may establish that it elected a particular act if (1) its closing argument, when considered with the jury instructions and the charging documents, makes clear the act or acts the State relies on for each charge and (2) there is no possibility that the jury could have been confused as to which act related to which charge. See State v. Bland, 71 Wn. App. 345, 351-52, 860 P.2d 1046 (1993).
In count III, the State alleged that Smith "did intentionally assault . . . [Lagrua], and thereby recklessly inflicted substantial bodily harm; contrary to [RCW] 9A.36.021(1)(a)." Clerk's Papers (CP) at 4. During closing argument, to corroborate and lend credibility to Lagrua's testimony, the State referred to three potential incidents that the jury could have found constituted second degree assault, as charged in count III; Smith pinning Lagrua to the wall by her neck in the bathroom, Smith choking Lagrua with both hands in front of other people at the party, and Smith choking Lagrua until she lost consciousness in his bedroom after everyone had left.
The "to convict" instruction for count III stated that to convict Smith, the State needed to prove the following elements beyond a reasonable doubt: "(1) That on or about the 17th day of March, 2005, [Smith] intentionally assaulted [Lagrua]; (2) That [Smith] thereby recklessly inflicted substantial bodily harm on [Lagrua]; and (3) That the acts occurred in [Washington]." CP at 32. The instructions defined "substantial bodily harm" as "bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part." CP at 26. When discussing the "to convict" instruction for count III during closing argument, the State argued that Smith,
intentionally assaulted Pam Lagrua. He put his hands around her neck and squeezed until she lost consciousness. [Smith] recklessly inflicted substantial bodily harm. That relates to [the instruction defining "substantial bodily harm"]. It's temporary but substantial disfigurement, or causes a temporary but substantial loss or impairment of the function of any bodily part or organ. Now, you heard the testimony of the [emergency room] doctor. He told you when somebody puts [their] hands around someone's neck and squeezes and cuts the blood flow, your brain is impaired. The function of your brain is impaired. And that is why she lost consciousness. That is an assault in the second degree.
RP at 474-75.
Lagrua testified that she lost consciousness when Smith choked her in his bedroom. She testified that she did not lose consciousness when Smith pinned her up against the wall in the bathroom or when he choked her with both hands in front of the other people at Smith's apartment. The only other evidence of substantial bodily harm came from the emergency room doctor's testimony that a person who loses consciousness suffers loss of brain function.
Because the State emphasized Lagrua's loss of consciousness, and its relation to "substantial bodily harm" — an element of second degree assault as charged in count III — in its closing argument, the State made clear the act it relied on for count III. See Bland, 71 Wn. App. at 351-52. And the State referred to two other incidents when Smith put his hands on Lagrua's neck only to corroborate her version of the story. The State elected the particular criminal act on which it relied for Smith's conviction of count III, the strangulation in Smith's bedroom, where Lagrua lost consciousness. Thus, the trial court did not err in failing to give a unanimity instruction.
IV. Same Criminal Conduct
Smith next argues that the trial court should have treated the two second degree assaults and the first degree rape as the same criminal conduct for sentencing. At sentencing, Smith did not argue that any of his convictions constituted the same criminal conduct. Ordinarily, we will reverse a sentencing court's "same criminal conduct" decision only for an abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990)). But here, because the parties did not address the issue below, the trial court never addressed the "same criminal conduct" issue.
In general, a defendant may challenge an illegal or erroneous computation of an offender score for the first time on appeal. See State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999) (citations omitted). But where a defendant affirmatively agrees to his offender score calculation during sentencing, he may not argue that his criminal acts constituted the same criminal conduct for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000 (2000).
In State v. O'Neal, 126 Wn. App. 395, 433, 109 P.3d 429 (2005), aff'd by State v. O'Neal, ___ Wn.2d ___, 150 P.3d 1121 (2007), we held that where a defendant's counsel affirmatively acknowledged the calculation of the defendant's offender score, the defendant waived the argument on appeal that his offenses constituted the same criminal conduct. Here, Smith's counsel stated that "[t]he defense does not disagree with the [S]tate's recitation of the offender score, or scoring history, or what the ranges are, or what the particular sentencing range is in this particular case." RP at 514. Because Smith affirmatively acknowledged his standard range and offender score during the sentencing hearing, he may not, for the first time on appeal, argue that his separate convictions constitute the same criminal conduct under RCW 9.94A.589(1)(a). See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002) (application of the same criminal conduct statute involves both factual determinations and the exercise of discretion and the failure to identify a factual dispute or request an exercise of the court's discretion waives the offender score challenge) (citing Nitsch, 100 Wn. App. at 520); see also O'Neal, 126 Wn. App. at 433.
V. Ineffective Assistance of Counsel
Smith next raises several claims of ineffective assistance of counsel. To establish that counsel ineffectively represented him, a Smith must show that his attorney's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003) (citations omitted). To establish prejudice, Smith must establish a reasonable probability that, but for his counsel's deficient performance, the trial result would have been more favorable. See State v. Mannering, 150 Wn.2d 277, 287, 75 P.3d 961 (2003). In reviewing an ineffective assistance claim, we presume that counsel's conduct fell within the wide range of reasonable professional assistance. Mannering, 150 Wn.2d at 286 (citing State v. Hendrickson, 129 Wn.2d 61, 78-79, 917 P.2d 563 (1996)).
1. Arguments in Smith's Brief
Smith contends that his counsel should have objected to certain testimony that he claims constituted inadmissible hearsay.
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). "Hearsay is not admissible except as provided by [the rules of evidence], by other court rules, or by statute." ER 802. Smith points to several statements.
A. Lagrua's Statement
Lagrua testified as follows:
Q: Do you have any idea whether Mr. Smith asked [Marcus Harris, Lagrua's friend,] to leave?
A: When I talked to him the next day he said he told him to leave, that he'd bring me home.
RP at 186.
Smith argues that his counsel should have objected on hearsay grounds and that this unchallenged statement prejudiced him because it allowed the jury to determine that he unlawfully imprisoned Lagrua. At trial, Smith testified that he did not tell Harris that Lagrua could not go home with Harris. Smith argues that "[i]t is impossible to say that the jury did not use [the above-quoted] statement to convict [him] of [unlawful imprisonment]." Br. of Appellant at 29.
Smith's argument is without merit. The State presented evidence that Smith slammed the door in Lagrua's face when she attempted to go outside. And Lagrua testified that she asked to leave the apartment on numerous occasions but that Smith physically restrained her and refused to let her leave. The contested statement was merely cumulative of the State's evidence supporting the unlawful imprisonment charge. Smith fails to show any prejudice from the alleged deficiency.
B. Citus Austin's Statement
Citus Austin, Lagrua's mother, testified as follows:
Q: When you observed [Lagrua collapse upon entering the house after Smith dropped her off], did she ever lose consciousness?
A: She just went down on the floor and sit [sic] there for a little bit. Then I asked her what's wrong with her. She goes, "I got raped."
. . . .
Q: Who did she say raped her?
A: Richard Smith.
RP at 251.
Smith argues that his trial counsel should have objected to this hearsay testimony because it contradicted his testimony that Lagrua consented to sexual intercourse.
But Austin also testified:
Q: What did you do? You said you called 911?
A: Um-hm.
Q: How fast did paramedics arrive?
A: Maybe within five minutes, something like that.
Q: And did she — was she able to really relate what was happening, or was she too upset?
A: No, she just kept crying.
RP at 251. Austin further testified that when Lagrua entered the house, she was a "[n]ine" on a scale of one to ten in terms of how upset she was. RP at 250. Thus, the trial court could admit Lagrua's statement to Austin that Smith raped her as an excited utterance. ER 803(a)(2). If Smith's trial counsel had objected, the trial court would have overruled it.
C. Harris's Statement
In reporting a conversation he had with Lagrua about whether she wanted to leave Smith's apartment with him, Harris testified:
A: And then like a little longer down the night, you know what I'm saying, I asked her [if she wanted to leave with me]. And she said that he said if she left with me he was going to do something to me, or her, or both of us. I couldn't understand what she said. But I knew she said he was going to try to do something to one of us or both of us.
Q: That's if she left with you?
A: Yes.
RP at 348.
Smith argues that this statement "bolstered [Lagrua's] credibility by corroborating her statement and provided a basis for determining" that Smith unlawfully imprisoned Lagrua. Br. of Appellant at 31. Again, Smith fails to show how admitting the statement affected the trial's outcome. See Mannering, 150 Wn.2d at 287. As we have discussed, the State presented evidence that Smith slammed the door in Lagrua's face when she attempted to go outside. And Lagrua testified that she wanted to leave the apartment, but Smith refused to let her go and dragged her into the bedroom. She also testified that she tried to leave after she was in his bedroom, but that he grabbed her and threw her back on the bed. The contested statement was merely cumulative of the State's evidence supporting the unlawful imprisonment charge.
2. Arguments in Smith's Statement of Additional Grounds for Review.
In a statement of additional grounds (SAG), Smith next argues that "defense counsel elicited [him] by telling the State that [Lagrua] called [defense counsel]" and said, "`I'm not going to testify.'" SAG at 1; RAP 10.10. Smith claims that this caused a conflict of interest and violated the attorney-client privilege. First, Smith, and not Lagrua, was defense counsel's client. No attorney-client privilege existed between defense counsel and Lagrua. Second, Smith fails to show how defense counsel's statement to the prosecutor that Lagrua would not testify constituted a conflict of interest. More importantly, Smith fails to show how the conduct prejudiced him. Smith's argument is without merit.
Smith also argues that his trial counsel should have produced a missing witness. Smith claims that the missing witness was the defense's "chief witness." SAG at 1. But during a colloquy with the court while waiting for the witness to arrive, Smith's trial counsel stated that the missing witness was not "an essential witness." RP at 444. And once the witness arrived, defense counsel stated that after speaking with the witness, the "defense feels it's not in [Smith's] best interests to call this witness." RP at 449. Counsel's decision is a legitimate trial strategy and not the basis for an ineffective assistance claim. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004) (citing State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)).
Finally, Smith argues that his trial counsel should have proposed a lesser included offense instruction on the first degree rape charge.
We employ a two-part test, with both legal and factual conditions, before determining that a defendant is entitled to a lesser included offense instruction. State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). Under the legal prong, each of the lesser offense's elements must be a necessary element of the charged offense Lyon, 96 Wn. App. at 450 (citing State v. Fernandez-Medina, 94 Wn. App. 263, 971 P.2d 521 (1999)). Under the factual prong, the evidence in the case must support an inference that the defendant committed only the lesser crime. Lyon, 96 Wn. App. at 450 (citing Workman, 90 Wn.2d at 447-48). In Lyon, the court reversed the defendant's second degree murder conviction, holding that the court should have instructed the jury on second degree assault as a lesser included offense because there was evidence that another person caused the victim's death after the defendant left the crime scene and because the State abandoned the "attempted" language in the charging document and proceeded to trial on the actual commission of second degree assault. Lyon, 96 Wn. App. at 451.
RCW 9A.44.050, which defines second degree rape, provides, in relevant part, that "(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person: (a) By forcible compulsion." RCW 9A.44.050(1)(a). Each element of second degree rape, as defined in RCW 9A.44.050(1)(a), is a necessary element of first degree rape. See RCW 9A.44.040. But here, unlike in Lyon, the evidence did not support an inference that Smith committed only second degree rape. Lagrua testified that Smith held first a razor and then a hammer to her head while raping her. Smith testified that Lagrua consented to the sex. Thus, neither side presented evidence that Smith forced Lagrua to engage in sex without the use of weapons. If Smith's counsel had proposed the lesser included offense of second degree rape, the trial court would have rejected it.
VI. Vindictive Prosecution
Finally, Smith argues that the State filed several additional charges after he declined to accept the State's proposed plea offer, which he claims is a violation of due process. Nothing in the record supports Smith's contention. A defendant's bare assertion that the prosecutor's charging decision was vindictive is insufficient to support a claim of vindictive prosecution. State v. Terrovonia, 64 Wn. App. 417, 422-23, 824 P.2d 537 (1992). Because Smith provides nothing more than a bare assertion, his claim fails.
Affirmed
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, P.J. Quinn-Brintnall, J., concur