FILED MARCH 22, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35543-8-III ) Respondent, ) ) v. ) OPINION PUBLISHED IN PART ) BENJAMIN E. STUTZKE, ) ) Appellant. )
PENNELL, J. — Benjamin Stutzke was charged with voyeurism, violation of a
protection order, felony stalking, and attempted residential burglary. After Mr. Stutzke
vacillated between exercising his rights to appointed counsel and self-representation, the
court determined Mr. Stutzke had waived the right to counsel through conduct. Mr.
Stutzke then proceeded to represent himself during a bench trial. He was convicted of
all charges with the exception of residential burglary. Mr. Stutzke now appeals, arguing:
(1) insufficient evidence supports the voyeurism conviction, and (2) the court deprived
him of the right to counsel. He also raises some technical issues with respect to his
sentence. We affirm Mr. Stutzke’s convictions, but remand for resentencing. No. 35543-8-III State v. Stutzke
FACTS 1
Offense conduct
The Stutzke and Townshend families were longtime neighbors. After Mr. Stutzke
reached adulthood, he began exhibiting unwanted attention toward Ms. Townshend. Ms.
Townshend eventually obtained an antiharassment protection order. The order prohibited
Mr. Stutzke from making contact with Ms. Townshend or coming within 50 feet of her
property. 2 The order was set to expire in 2015.
Things between Mr. Stutzke and Ms. Townshend came to a head on August 16,
2013. Ms. Townshend awoke around 6:00 a.m. and opened her bedroom blinds and
window. She then returned to bed and laid on top of the covers while naked. After
briefly dozing off, Ms. Townshend awoke to see Mr. Stutzke standing at the open
window, his hands resting on the window sill while he stared at her. Ms. Townshend
immediately went to close the blinds but, in her haste and fear, she pulled the blinds from
1 Mr. Stutzke does not challenge any of the trial court’s findings of fact from his bench trial, making them verities on appeal. State v. Munson, 120 Wn. App. 103, 106, 83 P.3d 1057 (2004). The factual background here is drawn from the trial court’s unchallenged findings. The procedural background is drawn from other parts of the record. 2 Ms. Townshend actually obtained two separate no-contact orders, covering different time periods. Only the second order, entered during March 2013, is pertinent to this appeal.
2 No. 35543-8-III State v. Stutzke
the wall. Ms. Townshend shouted at Mr. Stutzke to leave, but he did not. Mr. Stutzke
never turned away or averted his gaze. He did not appear frightened or nervous when Ms.
Townshend caught him. Mr. Stutzke remained fixated on Ms. Townshend until she
retreated to an area of the room that was out of Mr. Stutzke’s range of sight.
Ms. Townshend called the police to report Mr. Stutzke’s behavior. Mr. Stutzke
was arrested shortly thereafter.
Procedural background
Initial phase of proceedings
The State charged Mr. Stutzke with voyeurism, violation of a civil antiharassment
protection order, stalking, and attempted residential burglary. Mr. Stutzke was originally
released from custody pending trial. But he violated his release terms and was remanded
back into custody.
For approximately two years, Mr. Stutzke was represented by the same appointed
attorney. Disposition of the case was delayed to allow for two separate competency
evaluations. Mr. Stutzke was ultimately deemed competent to stand trial. During the
period the case was continued for the competency evaluations, Mr. Stutzke waived his
jury trial rights, but then rescinded the waiver.
3 No. 35543-8-III State v. Stutzke
In early December 2015, Mr. Stutzke appeared in court and asked to dismiss his
assigned counsel. Mr. Stutzke explained he wanted to be released from custody so he
could find a job and hire a private attorney. Mr. Stutzke claimed the passage of time was
a reason for his release, since he had likely already overserved any potential sentence.
The court denied Mr. Stutzke’s release request, explaining the passage of time was not a
relevant consideration. The court informed Mr. Stutzke his choice was to either go
forward with existing counsel or proceed pro se. The court then began to advise Mr.
Stutzke of the dangers and disadvantages of waiving counsel, but Mr. Stutzke
equivocated. He stated he wanted an attorney, just not the one currently assigned. The
court ultimately ruled Mr. Stutzke’s current attorney would remain on the case as there
was no basis for appointing substitute counsel.
Waiver of counsel and self-representation
On December 15, 2015, Mr. Stutzke filed a motion to proceed pro se. The court
engaged Mr. Stutzke in a full colloquy regarding the potential consequences of a
conviction and the dangers and disadvantages of waiving the right to counsel. Mr.
Stutzke again asked to be released so he could hire private counsel. This was denied.
The court again informed Mr. Stutzke his choice was either to remain with his current
counsel or proceed pro se. Mr. Stutzke opted for the latter. The court warned Mr.
4 No. 35543-8-III State v. Stutzke
Stutzke that once he waived his right to counsel, his waiver could apply for the entire
case, even if Mr. Stutzke grew to have second thoughts. Mr. Stutzke indicated he
understood. The court then permitted Mr. Stutzke to represent himself and also appointed
standby counsel.
Mr. Stutzke’s conduct as a pro se litigant was poor. At one point, he had to be
brought to court in restraints after refusing to come voluntarily. He also refused to meet
with the prosecutor to exchange discovery. The trial court decided to hold regular status
conferences with Mr. Stutzke in order to ensure his case moved forward.
During his pretrial status conferences, Mr. Stutzke continued to request release
from custody. The court repeatedly denied Mr. Stutzke’s requests, explaining Mr. Stutzke
posed a risk of nonappearance and that the passage of time did not change this
circumstance. In addition to repeatedly asking for release, Mr. Stutzke asked for
continuances to allow for adequate preparation. The trial court worked with Mr. Stutzke
regarding his trial preparation requests. Trial was set for February 29, 2016.
Rescission of self-representation and appointment of new counsel
On February 18, 2016, Mr. Stutzke appeared in court for a pretrial conference. He
indicated he would like to have appointed counsel represent him at trial. The trial court
expressed concern Mr. Stutzke was delaying the proceedings by vacillating on the issue
5 No. 35543-8-III State v. Stutzke
of counsel. But the court ultimately decided to appoint counsel out of an abundance of
caution. Mr. Stutzke’s standby attorney was appointed as full legal counsel. Trial was
then continued to May 23, 2016. Mr. Stutzke renewed his request for pretrial release
based on the passage of time. Once again, that request was denied.
Shortly after receiving appointed counsel, Mr. Stutzke began to complain about his
attorney’s performance. The accusations started on May 13 when Mr. Stutzke alleged his
attorney smelled of alcohol. The court determined this complaint was unfounded. Three
days later, Mr. Stutzke came back to court. His attorney reported Mr. Stutzke had refused
an attorney-client meeting and requested the attorney’s supervisor appoint new counsel.
Mr. Stutzke continued to criticize his attorney’s conduct and, at this point, requested self-
representation. The court passed over this request and ordered Mr. Stutzke’s current
attorney to stay on the case. The court informed Mr. Stutzke he could not keep changing
his mind regarding appointment of counsel. The court concluded the hearing after Mr.
Stutzke became verbally disruptive.
Waiver of counsel by conduct
On May 23, 2016—the date scheduled for trial—Mr. Stutzke’s attorney brought a
motion requesting leave to withdraw. Counsel advised the court that Mr. Stutzke had
persisted in his alcohol allegations, Spokane County Risk Management was now
6 No. 35543-8-III State v. Stutzke
involved, and an investigation was imminent. Mr. Stutzke’s attorney and counsel for the
State both expressed concern that Mr. Stutzke’s actions placed him in an adversarial
position not only with his current attorney but the entire public defender’s office. Mr.
Stutzke’s attorney informed the court that things had risen to a level such that there could
no longer be an attorney-client relationship between himself and Mr. Stutzke.
The court granted defense counsel’s request to withdraw. The court reiterated that
Mr. Stutzke’s complaints against his attorney were unfounded.
With assigned counsel released from his duties, the trial court informed Mr.
Stutzke it needed to determine what to do regarding counsel. The court recapped the
history of Mr. Stutzke’s case. Over the course of three years’ litigation, Mr. Stutzke:
(1) missed an arraignment, (2) violated release conditions, (3) was the subject of two
competency evaluations, (4) waived jury trial and then rescinded the waiver, (5) fired his
first public defender in order to proceed pro se, (6) refused to come to court multiple
times despite being warned he must do so, (7) refused to meet with the prosecutor or
attend scheduled witness interviews he asked for despite being informed he must do so,
(8) asked for and received a new public defender, thus delaying trial, and then (9) alleged
the new public defender was intoxicated in court and refused to meet with him. Based on
these circumstances, and out of concern for Ms. Townshend to have this case resolved,
7 No. 35543-8-III State v. Stutzke
the trial court found Mr. Stutzke had “constructively waived” his right to an attorney and
would be proceeding without one. Report of Proceedings (RP) (May 23, 2016) at 193-94.
Trial and disposition
The case proceeded to a bench trial after Mr. Stutzke waived his jury trial rights
for the second time. The court found Mr. Stutzke guilty of all charges except attempted
residential burglary. For the violation of a protection order conviction, the trial court
imposed 364 days of confinement and 24 months of community custody. On the stalking
conviction, Mr. Stutzke was sentenced to 18 months of community custody for a violent
offense. The trial court also entered a sexual assault protection order for Ms. Townshend,
with the order to expire on August 18, 2026.
Mr. Stutzke appeals his convictions and sentence.
ANALYSIS
Voyeurism conviction
Mr. Stutzke contends insufficient evidence supports his conviction for voyeurism.
Because his arguments turn on the proper interpretation of the voyeurism statute, our
review is de novo. State v. Diaz-Flores, 148 Wn. App. 911, 915, 201 P.3d 1073 (2009).
When embarking on statutory interpretation, we focus on the language used by the
8 No. 35543-8-III State v. Stutzke
legislature. In re Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011).
If the meaning of a statute is plain on its face, we will not resort to tools of construction
such as legislative history. Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc.,
125 Wn.2d 305, 312, 884 P.2d 920 (1994). Instead, we will give effect to the statute’s
plain meaning. Schneider, 173 Wn.2d at 363.
The legislature has defined the crime of voyeurism (now first degree voyeurism)
through a single sentence, containing several component parts. The controlling sentence
at the time of the offense conduct stated:
(2) A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films: (a) Another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy; or (b) The intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.
Former RCW 9A.44.115(2) (2003) (emphasis added). 3
The verb “views,” as used in the voyeurism statute, has a special meaning.
RCW 9A.44.115(1)(e). It does not include a momentary or casual observation. Instead,
3 The trial court found Mr. Stutzke guilty under both alternatives.
9 No. 35543-8-III State v. Stutzke
in order to “view” something for purposes of voyeurism, a defendant’s act of observation
must last “for more than a brief period of time.” 4
Understanding the meaning of the sentence used to define voyeurism involves
analyzing its grammatical structure. 5 The subject of the sentence is the individual
charged with the offense. Pertinent to this appeal, the verb is the word “views.” The verb
has two possible direct objects: either “[a]nother person” or the “intimate areas of another
person.” Former RCW 9A.44.115(2)(a), (b). The verb is also modified by the
prepositional phrase “without knowledge and consent.” At issue in this appeal is the
significance of this prepositional phrase.
Mr. Stutzke contends that because the prepositional phrase has two objects—
knowledge and consent—each object serves to independently modify the verb “views.”
In other words, he claims the crime of voyeurism is committed when an individual views
another person without their knowledge and also views that person without their consent.
Under Mr. Stutzke’s reading, if an individual merely views the victim without the
4 The full definition of “views” is as follows: “the intentional looking upon of another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or with a device designed or intended to improve visual acuity.” RCW 9A.44.115(1)(e). 5 Because voyeurism is confined to a single statute, our analysis is not guided by related statutory provisions or other context. Cf. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 13, 43 P.3d 4 (2002).
10 No. 35543-8-III State v. Stutzke
victim’s consent, but does not also view them without their knowledge, then there is no
crime.
The flaw in Mr. Stutzke’s reasoning is that it confuses the existence of a two-
word prepositional object (“knowledge” and “consent”) with the existence of two
prepositional phrases (“without knowledge” and “without consent”). “Without
knowledge and consent” is one prepositional phrase that modifies the verb “views” by
requiring the defendant’s act of viewing be without the combination of knowledge and
consent. Based on the wording of the statute, if either knowledge or consent is absent,
then the combination is not present and the statute is satisfied. An analogy would be
RCW 46.16A.030(2), which prohibits operating a vehicle without proper “registration
and displaying license plates.” A violation occurs so long as one component of the
registration and license plate combination is missing. There is no requirement that both
be absent.
Our case law has previously interpreted voyeurism in this manner. In State v.
Fleming, 137 Wn. App. 645, 647-48, 154 P.3d 304 (2007), we found the defendant
committed voyeurism when he was caught peering down at a woman who was seated
inside of a bathroom stall. Given the only witnesses were the woman and the defendant,
there was no third party evidence of how long the defendant had been looking at the
11 No. 35543-8-III State v. Stutzke
victim prior to being caught. However, the defendant continued to look at the victim as
she yelled at him, told him she had a cell phone, yelled for help, and then ran out of the
stall. We held that the defendant’s conduct, all of which occurred with the victim’s
knowledge but not consent, was sufficiently prolonged to fall under the verb “views” and
thus the statute was met. It did not matter that the State failed to present evidence
indicating the defendant viewed the woman for an appreciable period of time without her
knowledge.
Here, the State presented more than sufficient evidence to satisfy the plain terms
of the voyeurism statute. The evidence showed Mr. Stutzke began watching Ms.
Townshend’s naked body while she was lying on her bed. Mr. Stutzke then continued to
observe Ms. Townshend as she looked up at him, yelled at him to leave, rushed to her
window, and tried to close the blinds. The entire episode lasted more than a brief period
of time. It was never consensual. Sufficient evidence supports Mr. Stutzke’s conviction.
“Constructive waiver” of right to counsel & motion to withdraw
An individual accused of a crime has a constitutional right to the assistance of
counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. But this right does not
permit a defendant to deliberately or inadvertently delay trial by refusing to engage with
counsel. City of Tacoma v. Bishop, 82 Wn. App. 850, 856, 859, 920 P.2d 214 (1996);
12 No. 35543-8-III State v. Stutzke
see also State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991) (“A defendant may
not manipulate the right to counsel for the purpose of delaying and disrupting trial.”).
A defendant can lose the right to counsel in three ways: (1) waiver, (2) forfeiture, or
(3) waiver by conduct. Bishop, 82 Wn. App. at 858-59; see also United States v.
Goldberg, 67 F.3d 1092, 1099-1103 (3rd Cir. 1995). The focus here is waiver by
conduct.
Prior to finding a defendant has waived the right to counsel by conduct, the trial
court must provide two types of warnings. First, the court must advise a defendant of the
consequences of proceeding without counsel, as contemplated by the Faretta 6 standard.
Bishop, 82 Wn. App. at 860. Second, the court must warn the defendant that the right to
counsel will be lost if the defendant engages in dilatory tactics or misconduct. Id.; City of
Seattle v. Klein, 161 Wn.2d 554, 562, 166 P.3d 1149 (2007); see also Goldberg, 67 F.3d
at 1101. The court’s warnings need not be timed to closely precede the defendant’s
misconduct. State v. Afeworki, 189 Wn. App. 327, 346, 358 P.3d 1186 (2015). Nor must
the court’s warnings follow a particular formula or script. See Iowa v. Tovar, 541 U.S.
77, 88, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004).
6 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
13 No. 35543-8-III State v. Stutzke
The trial court provided Mr. Stutzke with both types of requisite warnings before
declaring waiver of counsel by conduct. There is no real dispute that the court provided
full Faretta warnings. This happened when Mr. Stutzke originally waived his right to
counsel on December 15, 2015. In addition, the court took care to warn Mr. Stutzke that
his conduct could result in waiver of the right to counsel. Specifically, the court
repeatedly told Mr. Stutzke his options regarding counsel were limited; he could either
accept representation by the court’s chosen attorney or proceed pro se. Through his
conduct, Mr. Stutzke made his choice clear. By concocting 7 a conflict that effectively
pushed his court-appointed attorney out of the case, Mr. Stutzke selected self-
representation. He was not entitled to a third option. State v. Sinclair, 46 Wn. App. 433,
437, 730 P.2d 742 (1986); United States v. Moore, 706 F.2d 538 (5th Cir. 1983) (“[A]
persistent, unreasonable demand for dismissal of counsel and appointment of new counsel
. . . is the functional equivalent of a knowing and voluntary waiver of counsel.”). The
trial court’s finding of waiver by conduct was fully warranted. 8
7 The trial court made a factual finding that Mr. Stutzke’s accusations against trial counsel were unfounded. We will not disturb that finding on appeal. 8 Because Mr. Stutzke’s conduct amounted to a waiver of the right to counsel, the trial court was necessarily authorized to grant defense counsel’s motion to withdraw.
14 No. 35543-8-III State v. Stutzke
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Sentencing issues & scrivener’s error
Mr. Stutzke alleges several sentencing errors. We accept the State’s concession as
to all asserted errors and therefore keep our discussion brief.
Merger of conviction for violation of a civil antiharassment order
Mr. Stutzke’s stalking charge was elevated from a misdemeanor to a felony
because it was committed in violation of a preexisting antiharassment protection order.
RCW 9A.46.110(5)(b)(ii). Given this circumstance, the offenses of stalking and
violation of the harassment order merged. See State v. Whittaker, 192 Wn. App. 395,
399, 415-16, 367 P.3d 1092 (2016); State v. Parmelee, 108 Wn. App. 702, 710-11,
32 P.3d 1029 (2001). Remand is required so the conviction for violating a protection
order can be vacated and the related community custody term stricken.
18-month community custody term on stalking conviction
Because stalking is a crime against the person, not a crime of violence, the court
should have limited the term of community custody for Mr. Stutzke’s stalking conviction
15 No. 35543-8-III State v. Stutzke
to 12 months. RCW 9.94A.411(2)(a), .701(3)(a). This correction shall be made on
remand.
Sexual assault protection order
Upon conviction for a sex offense, a trial court may enter a sexual assault
protection order that restricts the defendant’s ability to have contact with the victim.
RCW 7.90.150(6)(a). When such an order is entered in conjunction with a criminal
prosecution, the order shall remain in effect for a period of two years “following the
expiration of any sentence of imprisonment and subsequent period of community
supervision, conditional release, probation, or parole.” RCW 7.90.150(6)(c). On remand
for resentencing, the trial court shall modify the length of the sexual assault protection
order to comply with the terms of RCW 7.90.150(6)(c).
Scrivener’s error
The judgment and sentence correctly indicates Mr. Stutzke was convicted of
felony stalking under RCW 9A.46.110(5)(b)(ii). But the judgment and sentence also
incorrectly indicates that a conviction under that subsection is for domestic violence.
Domestic violence stalking is RCW 9A.46.110(5)(b)(i), not (5)(b)(ii). This scrivener’s
error can be corrected during resentencing. See State v. Munoz-Rivera, 190 Wn. App.
870, 895, 361 P.3d 182 (2015).
16 No. 35543-8-111 State v. Stutzke
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Stutzke has filed a statement of additional grounds for review, but does not
identify any specific basis for relief. We decline consideration pursuant to RAP 10.10(c).
CONCLUSION
Mr. Stutzke's convictions are affirmed. This matter is remanded for resentencing
and correction of a scrivener's error.
WE CONCUR: