State v. Tower, No. 31120-8-II (WA 2/1/2005)
| Decision Date | 01 February 2005 |
| Docket Number | No. 31120-8-II,31120-8-II |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN W. TOWER, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Pierce County. Docket No: 03-1-03565-5. Judgment or order under review. Date filed: 12/19/2003. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Steven Tower appeals his conviction of first degree escape, arguing that his counsel was constitutionally ineffective for failing to propose lesser included instructions. We affirm.
After Tower pleaded guilty to possession of a controlled substance on July 7, 2003, the trial court sentenced him to four months in the Break the Cycle (BTC) alternative program and 12 months in community custody.1 Tower was booked into the Pierce County Jail until his transport to the BTC program.
On July 15, 2003, Deputy Aaron Steben took Tower to the BTC facility. Steben and Georgia Robinson, a case manager with the BTC program, went over the program's rules, guidelines, and conditions with Tower. They explained that if Tower failed to comply with the BTC rules, he would be subject to a possible escape charge.
Tower failed to report to the BTC facility on July 16, 17, and 18. Robinson believed she had reached a disconnected phone number when she attempted to call him at the number he had left with her. Steben went to the address Tower had provided, but could not locate him or ascertain if he had been there. A neighbor told Steben that he had not seen Tower in seven months. On July 21, Steben reported to the prosecutor that Tower was not complying with the BTC program.
The State charged Tower with first degree escape on August 5, 2003. After learning a month later that there was a warrant out for his arrest, Tower turned himself in.
At trial, Tower testified that he did not report to BTC on July 16 because he was `trying to forget about the jail, the system, the court.' Report of Proceedings (RP) at 77. He explained that his mental state was `messed up' and that he had medical problems while he was in jail. RP at 74. He added that he left a phone message with the BTC facility on July 17, but Robinson testified that she had no record of any such message. Tower acknowledged that he did not contact BTC after July 17.
The jury found Tower guilty as charged. He now appeals.
Tower argues that the trial court should have instructed the jury on the lesser included offenses of second degree escape and third degree escape.
Tower's attorney did not request lesser included instructions. The failure to give a particular instruction is not error when no request was made for such an instruction. State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991) (citing State v. Scott, 110 Wn.2d 682, 686, 688 n.5, 757 P.2d 492 (1988)). Accordingly, lesser included instructions are not required when not requested. Hoffman, 116 Wn.2d at 112 (citing State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407 (1986)).
Tower argues in the alternative that his counsel was ineffective for failing to propose lesser included instructions. To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defendant. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
The trial court should instruct on a lesser included offense only if two conditions are met: each element of the lesser offense must be a necessary element of the charged offense (the legal prong), and the evidence must support an inference that the lesser crime was committed instead of the charged crime (the factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted). The court applies the lesser included offense analysis to the offenses as charged and prosecuted, rather than as they broadly appear in the statute. State v. Berlin, 133 Wn.2d 541, 548, 551 n.2, 947 P.2d 700 (1997).
A person commits first degree escape if, while being detained on a felony conviction, he escapes from custody. RCW 9A.76.110(1). A person commits second degree escape if, while being detained on a felony charge, he escapes from custody. RCW 9A.76.120(1)(b). A person commits third degree escape by simply escaping from custody. RCW 9A.76.130(1). Unlike first degree escape, second and third degree escape do not require proof of a felony conviction. State v. Hickok, 39 Wn. App. 664, 676, 695 P.2d 136 (1985).
Tower did not dispute at trial that he was in custody for a felony conviction while he was in the BTC program. See State v. Breshon, 115 Wn. App. 874, 876, 63 P.3d 871 (2003) (). Accordingly, the evidence does not raise the inference that Tower committed either second...
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