Filed Washington State Court of Appeals Division Two
February 17, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54348-6-II
Respondent,
v. UNPUBLISHED OPINION
DAVID EDWARD SMALLEY,
Appellant.
MAXA, P.J. – David Smalley appeals his convictions for second degree assault,
possession of a controlled substance (methamphetamine), and witness tampering as well as the
imposition of community custody supervision fees as a legal financial obligation (LFO). The
convictions arose from an incident in which Smalley stabbed an acquaintance, and then in
telephone calls from jail attempted to have a third person convince the victim to sign a statement
that the stabbing was accidental.
We hold that (1) sufficient evidence supports Smalley’s witness tampering conviction,
(2) the amended information provided sufficient notice of the unlawful possession of a controlled
substance and assault charges, and (3) the record is unclear whether the trial court intended to
impose community custody supervision costs as determined by the Department of Corrections
(DOC). Accordingly, we affirm Smalley’s convictions, but we remand to the trial court to
consider whether to impose supervision costs. No. 54348-6-II
FACTS Incident and Investigation
Smalley and Chambers were acquaintances. On March 5, 2019, Chambers visited
Smalley in Smalley’s garage with others present. Smalley gave Chambers money and
methamphetamine. Smalley then made a statement to which Chambers took offense. Chambers
responded with a rude comment.
Embarrassed by Chambers’ comment, Smalley approached Chambers and stabbed him in
the abdomen with a knife. The stab wound penetrated all three layers of Chambers’ abdominal
wall and potentially was life-threatening. Chambers underwent exploratory surgery to ensure
that there was no internal damage, and the wound was repaired.
Officer Noah Dier from the Lakewood Police Department investigated the incident and
spoke with Chambers about his injury. On two separate occasions, Chambers told him that he
had been stabbed by a person named Tony. After Chambers underwent surgery, Dier spoke to
him a third time about the incident. On this occasion, Chambers told Dier that Smalley had
stabbed him at Smalley’s residence.
Lakewood Police obtained a search warrant for Smalley’s residence. Officers executed
the search warrant and arrested Smalley. In a search of Smalley incident to arrest, officers found
a bag of methamphetamine in Smalley’s jacket.
Telephone Calls from Jail
While in jail, Smalley made several telephone calls to a friend, McKenna Melton.
Sergeant Sean Conlon listened to the calls and they also were recorded. In these calls, Smalley
attempted to have Melton contact Chambers for the purpose of having Chambers write and sign a
statement that the stabbing was an accident.
2 No. 54348-6-II
Charging Information
The State filed an amended information charging Smalley with first degree assault,
witness tampering, and unlawful possession of a controlled substance (methamphetamine).
Smalley did not object to the information.
Bench Trial
Smalley waived a jury trial and was tried by the court. At trial, Chambers acknowledged
that he gave three different statements to law enforcement as to the circumstances of his
stabbing. Chambers stated that he intended to return to Smalley’s home to exact revenge
himself, so he initially withheld the truth in an attempt to throw law enforcement off. Chambers
testified that he had a change of heart and decided to identify Smalley after undergoing surgery.
Chambers then told Dier that Smalley had stabbed him.
Chambers testified at trial that Smalley stabbed him intentionally. In addition, Chambers
testified that he never told anyone that the stabbing was an accident. The trial court found
Chambers’ testimony credible.
During Conlon’s testimony, the State introduced an audio recording and written transcript
of phone calls Smalley made from jail to Melton. Conlon testified that, throughout the course of
these phone calls, Smalley attempted to get Melton to locate Chambers and get him to sign an
agreement that the stabbing was an accident.
At the end of the trial, the trial court gave an oral ruling finding Smalley guilty of second
degree assault as an inferior degree offense to the charge of first degree assault, possession of a
controlled substance (methamphetamine), and witness tampering. The trial court later entered
detailed findings of fact and conclusions of law supporting the guilty verdicts. The findings
incorporated the exhibits admitted into evidence, and the court’s oral ruling.
3 No. 54348-6-II
The trial court made express findings of fact that Smalley intentionally assaulted
Chambers with a deadly weapon. The court also made conclusions of law that the assault was
intentional. In addition, the court made a finding that Smalley’s calls to McKenna constituted an
attempt to induce Chambers to testify falsely. And the court made a conclusion of law that
Smalley attempted to induce Chambers to testify falsely.
At sentencing, the court found Smalley indigent and imposed a mandatory $500 crime
victim penalty assessment and restitution in an amount to be determined at a future restitution
hearing. When discussing the imposition of LFOs, the court stated, “$500 crime victim penalty
assessment, and that is it.” Report of Proceedings (RP) at 491 (emphasis added). In its oral
ruling, the court did not specifically order Smalley to pay supervision fees. Neither party
mentioned supervision fees.
In the judgment and sentence, the court crossed out the DNA database fee, court-
appointed attorney fees and defense costs, and the criminal filing fee, writing “Waived by
Court.” Clerk’s Papers (CP) at 33. The judgment and sentence stated that total LFOs were $500.
The court also imposed community custody conditions. The court did not strike a boilerplate
provision stating that while on community custody, Smalley shall “pay supervision fees as
determined by DOC.” CP at 35.
Smalley appeals his convictions and the imposition of the supervision fees as an LFO.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Smalley argues that the evidence was insufficient to prove that he committed witness
tampering. Specifically, he claims that the State proved only that he had attempted to induce
Chambers to testify, not that he attempted to induce Chambers to testify falsely. We disagree.
4 No. 54348-6-II
1. Standard of Review
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the
court views the evidence and all reasonable inferences drawn from that evidence in the light
most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of
fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally
reliable. Id.
We treat unchallenged findings of fact as verities on appeal. State v. Homan, 181 Wn.2d
102, 106, 330 P.3d 182 (2014). Here, Smalley assigned error to only one finding of fact – that he
attempted to induce Chambers to testify falsely. Therefore, the court’s other findings are
verities.
2. Witness Tampering
RCW 9A.72.120(1)(a) states that a person is guilty of witness tampering “if he or she
attempts to induce a witness or person he or she has reason to believe is about to be called as a
witness . . . to: (a) [t]estify falsely.” In assessing whether the defendant tampered with a witness,
the trier of fact can consider both “the literal meaning of the words used” and “the inferential
meaning of the words and the context in which they were used.” State v. Rempel, 114 Wn.2d 77,
83-84, 785 P.2d 1134 (1990).
3. Analysis
Smalley concedes that he was trying to induce Chambers to testify. The question is
whether there was sufficient evidence to prove that he asked Chambers to testify falsely.
5 No. 54348-6-II
Smalley argues that under RCW 9A.72.120(1)(a), the State must prove that the defendant
knew that the witness did not believe the testimony that the defendant was trying to induce. In
other words, a defendant must know that the witness would be lying if he or she provided the
requested testimony. According to Smalley, the fact that the testimony ultimately turns out to be
false should not matter. Otherwise, a defendant’s right to present a defense would be thwarted.
A defendant must be allowed to contact witnesses to see if they will agree to provide testimony
that will support the defendant’s version of the facts.
Relying on this interpretation of the law, Smalley argues that there is no evidence that he
knew that Chambers did not believe that the stabbing was accidental and that saying that it was
accidental would be false. Smalley claims that he merely wanted Chambers to sign a statement
confirming what he allegedly had told others: that the stabbing was an accident. He asserts that
he had no reason to know that Chambers believed the stabbing was intentional. And Smalley
thought that the stabbing was an accident. Therefore, Smalley was asking Chambers to truthfully
state what both he and Chambers believed to be true. Smalley contends that neither his literal
words nor their inferential meaning suggested otherwise.
Even assuming Smalley’s legal interpretation of RCW 9A.72.120(1)(a) is correct, we
reject Smalley’s argument for three reasons. First, Smalley’s argument depends on his testimony
that Melton informed him that Chambers had told others that the stabbing was accidental.
However, Chambers testified that Smalley intentionally stabbed him. And Chambers expressly
testified that he never told anyone that the stabbing was an accident. The trial court found that
Chambers was a credible witness. The court was free to credit Chambers’ testimony on this
issue and disregard Smalley’s testimony. This court does not review the factfinder’s credibility
determinations. Cardenas-Flores, 189 Wn.2d at 266.
6 No. 54348-6-II
Second, there is evidence in the transcripts of the telephone calls from which the court
could infer that Smalley knew that Chambers believed that the stabbing was intentional.
Referring to Chambers, Smalley stated, “He lied twice. . . . You know, he covered (inaudible)
good for me.” Ex. 3 at 33. In commenting on Chambers’ multiple statements to law
enforcement, Smalley stated that Chambers’ lies initially had “gained a cover for me” because
they indicated that someone else had been responsible for the stabbing. Ex. 3 at 33. Then
Smalley stated, “You know, I did it.” Ex. 3 at 33.
Third, the trial court made unchallenged findings of fact that Smalley intentionally
stabbed Chambers. Those findings are verities on appeal. Homan, 181 Wn.2d at 106.
Therefore, the court could infer that Smalley knew that the stabbing was not an accident and that
he was attempting to induce Chambers to testify falsely to a fact that Smalley knew was false.
We conclude that sufficient evidence supports Smalley’s witness tampering conviction.
Accordingly, we affirm that conviction.
B. SUFFICIENCY OF INFORMATION
Smalley argues that the information provided insufficient notice of (1) the unlawful
possession of controlled substance charge because it omitted the element of knowledge, and (2)
the assault charge because it omitted an “unlawful force” element. We disagree.
1. Legal Principles
Under the Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution, “[a]ccused persons have the constitutional right to know the
charges against them.” State v. Pry, 194 Wn.2d 745, 751, 452 P.3d 536 (2019). The State gives
notice of criminal charges in an information, which “shall be a plain, concise and definite written
7 No. 54348-6-II
statement of the essential facts constituting the offense charged.” CrR 2.1(a)(1); see State v.
Porter, 186 Wn.2d 85, 89, 375 P.3d 664 (2016).
To be constitutionally sufficient, an information must state “every essential statutory and
nonstatutory element of the crime.” Pry, 194 Wn.2d at 751. An essential element is one that
must be specified to establish the illegality of the charged behavior. Id. at 752. If the
information fails to allege every essential element, it is insufficient and the charge must be
dismissed without prejudice. Porter, 186 Wn.2d at 89-90.
However, the information is not required to provide definitions of essential elements.
Pry, 194 Wn.2d at 752. Definitions of terms within an essential element are not themselves
essential elements. State v. Johnson, 180 Wn.2d 295, 302, 325 P.3d 135 (2014).
When the defendant challenges the sufficiency of the information for the first time on
appeal, as here, this court liberally construes the document in favor of its validity. Pry, 194
Wn.2d at 752. This court determines based on a liberal reading whether the information in some
manner contains all the essential elements. Id.
We review de novo allegations of constitutional violations, such as the insufficiency of an
information. See Johnson, 180 Wn.2d at 300.
2. Unlawful Possession of a Controlled Substance
Smalley argues that an essential element of possession of a controlled substance is that
the defendant knowingly possessed the substance. He contends that the amended information
was insufficient because it did not allege that he knowingly possessed methamphetamine. We
disagree.
RCW 69.50.4013(1) states, “It is unlawful for any person to possess a controlled
substance.” In State v. Bradshaw, the Supreme Court confirmed that the unlawful possession
8 No. 54348-6-II
statute does not have a mens rea element. 152 Wn.2d 528, 532-34, 98 P.3d 1190 (2004). And
the court refused to imply such an element. Id. at 535-37. Bradshaw remains good law.
Smalley notes that the Supreme Court has granted review on this issue in State v. Blake,
194 Wn.2d 1023, 456 P.3d 395 (2020). And he argues that if the Supreme Court were to
overrule Bradshaw during the pendency of this appeal, that holding would apply to this case.
However, the court has not yet issued an opinion in Blake. Therefore, we remain bound by
Bradshaw. State v. Jussila, 197 Wn. App. 908, 931, 392 P.3d 1108 (2017).
We reject Smalley’s argument that the information was insufficient with respect to the
unlawful possession of a controlled substance charge.
3. Assault
Smalley argues that an essential element of first degree assault is that the assault was
carried out with “unlawful force.” He contends that the amended information was insufficient
because it did not allege this element. We disagree.
The State charged Smalley with first degree assault under RCW 9A.36.011(1)(a)1, which
means assaulting another “with intent to inflict great bodily harm . . . with a firearm or any
deadly weapon or by any force or means likely to produce great bodily harm or death.”
One of the essential elements of first degree assault is an “assault.” State v. Elmi, 166
Wn.2d 209, 215, 207 P.3d 439 (2009). Because the criminal code does not define the term
“assault,” courts apply the common law definition. Id. Three definitions of assault are
recognized: “(1) an unlawful touching (actual battery); (2) an attempt with unlawful force to
1 RCW 9A.36.011has been amended since the events of this case transpired. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute.
9 No. 54348-6-II
inflict bodily injury upon another, tending but failing to accomplish it (attempted battery); and
(3) putting another in apprehension of harm.” Id. at 215.
Smalley claims that regardless of degree, an assault requires the use of unlawful force,
citing State v. Prado, 144 Wn. App. 227, 181 P.3d 901 (2008). But Prado involved the
adequacy of a jury instruction defining assault, not the sufficiency of an information. Id. at 245-
47. The court noted that the pattern jury instruction on the definition of assault included
“unlawful force” as a bracketed phrase. Id. at 246; see 11 WASHINGTON PRACTICE: PATTERN
JURY INSTRUCTIONS: CRIMINAL § 35.50 (4th ed. 2016) (WPIC).2
However, the court noted that the bracketed phrase may only be appropriate if there is
evidence of self-defense or other lawful force. Prado, 144 Wn. App. at 246-47. The Note on
Use for WPIC 35.50 states, “Include the phrase ‘with unlawful force’ if there is a claim of self-
defense or other lawful use of force.” Prado was a self-defense case. 144 Wn. App. at 247; see
also State v. Brooks, 142 Wn. App. 842, 846-47, 176 P.3d 549 (2008) (holding that inclusion of
the term “unlawful force” in a second degree assault instruction was not required because the
defendant did not claim self-defense).
In any event, whether unlawful force must be included in a jury instruction is a much
different issue than whether that term must be included in an information. The fact that unlawful
force may be part of the definition of assault under certain circumstances does not make
unlawful force an essential element. As noted above, the information is not required to provide
definitions of essential elements because definitions are not themselves essential elements. Pry,
194 Wn.2d at 752; Johnson, 180 Wn.2d at 302.
2 Prado cited to the version of WPIC 35.50 in the 2005 second edition supplement. Prado, 144 Wn. App. at 246.
10 No. 54348-6-II
Further, the Supreme Court has stated in an alternative means case that the common law
definitions of assault do not constitute essential elements of the offense. State v. Smith, 159
Wn.2d 778, 788, 154 P.3d 873 (2007). Rather, they merely define an element of the crime
charged: the element of assault. Id. at 787.
We reject Smalley’s argument that the information was insufficient with respect to the
first degree assault charge.
C. IMPOSITION OF COMMUNITY CUSTODY SUPERVISION FEES
Smalley argues that the trial court erred in failing to waive the condition of community
custody requiring him to pay supervision fees after finding him indigent. We conclude that the
record is unclear whether the trial court intended to impose supervision costs.
“Unless waived by the court, as part of any term of community custody, the court shall
order an offender to: . . . [p]ay supervision fees as determined by [DOC].” RCW
9.94A.703(2)(d). Because they are waivable by the court, supervision fees are discretionary
LFOs. State v. Spaulding, 15 Wn. App. 2d 526, 536, 476 P.3d 205 (2020). But a discretionary
supervision fee is not a “cost” as defined in RCW 10.01.160(2), and therefore the prohibition in
RCW 10.01.160(3) of imposing “costs” on an indigent person is inapplicable. Spaulding, 15
Wn. App. 2d at 536-37. Therefore, the trial court had authority to impose supervision fees as an
LFO even though Smalley was indigent.
However, it is unclear whether the trial court intended to impose supervision fees. The
court waived all the discretionary fees in the LFO section of the judgment and sentence. And in
discussing the imposition of LFOs, the court stated that it would impose the “$500 crime victim
penalty assessment, and that is it.” RP at 491 (emphasis added). This comments suggests that
the court did not intend to impose supervision fees.
11 No. 54348-6-II
On the other hand, the supervision fees provision was in a separate part of the judgment
and sentence dealing with community custody. Even though the court waived other
discretionary LFOs, it is possible that the court intended to impose supervision fees as a
condition of community custody.
Because it is unclear whether the trial court intended to impose supervision fees, we
remand for the trial court to consider in its discretion whether to impose supervision fees.
CONCLUSION
We affirm Smalley’s convictions, but we remand to the trial court to consider whether to
impose supervision fees.
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 in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
I concur:
GLASGOW, J.
12 No. 54348-6-II
CRUSER, J. (dissenting in part) – I respectfully dissent from the majority’s decision to
remand this case for the trial court to reconsider its imposition of community custody supervision
fees. I would decline to consider this issue pursuant to RAP 2.5(a)(3).
This case is one of numerous cases in which we have been asked, in the face of an
unambiguous notation on the judgment and sentence imposing community supervision fees, to
parse the trial court’s oral remarks at sentencing and conclude that the trial court did not mean to
impose such fees. The genesis of this problem is that the supervision fees are located in a different
portion of the judgment and sentence than the remainder of the legal financial obligations (LFOs).
In Smalley’s judgment and sentence, the community custody supervision fee is found in paragraph
4.6, while the remaining LFOs are found in paragraph 4.1. The assumption we are asked to make
is that the trial court did not see the supervision fee provision before signing the judgment and
sentence and, thus, imposed a fee it did not intend to impose.
In some cases this assumption is well taken, such as when a sentencing court specifically
indicates an intention not to impose any non-mandatory “fees.” Here, the court said “$500 crime
victim penalty assessment, and that is it.” Verbatim Report of Proceedings at 491. But, as noted
above, the victim assessment provision is located in paragraph 4.1 of the judgment and sentence,
along with all of the other LFOs except the community custody supervision fees. It is reasonable
to conclude that when the judge said “that is it,” he was reviewing paragraph 4.1 and indicating
his intention not to impose any of the other LFOs contained in that paragraph.
Moreover, the community custody supervision fees are qualitatively different than other
legal financial obligations. Fees and costs such as court appointed attorney fees and filing fees are
intended to recoup expenses that accrued during the course of the prosecution. Community custody
13 No. 54348-6-II
supervision fees, in contrast, are prospective fees intended to cover expenses related to the
execution of the defendant’s sentence.
The majority concludes that the trial court intended not to impose any other LFOs and
simply overlooked the community custody supervision fees plainly written into paragraph 4.6.
This conundrum highlights the importance of raising objections to LFOs to the sentencing court.
This process wherein we are asked, at the appellate level, to look at the trial court’s oral remarks
at sentencing and guess at the court’s intent is what RAP 2.5 is intended to prevent. Although we
have the discretion to consider this issue for the first time on appeal, there is no legitimate reason
why, nearly six years after our supreme court decided State v. Blazina, 182 Wn.2d 827, 344 P.3d
680 (2015), and more than two years after the decision in State v. Ramirez, 191 Wn.2d 732, 426
P.3d 714 (2018), defense attorneys continually fail to raise objections to the imposition of LFOs
at sentencing.3 One might reasonably conclude that the inclination of appellate courts to do on
appeal what defense attorneys are duty bound to do at sentencing is encouraging this dereliction.
I would decline to consider this issue for the first time on appeal. The sentencing court’s
oral remarks are not part of the final judgment unless reduced to a written order, here the judgment
and sentence. State v. Huckins, 5 Wn. App. 2d 457, 426 P.3d 797 (2018) (citing State v. Dailey,
93 Wn.2d 454, 458, 610 P.2d 357 (1980)). I do not dispute that there are cases in which the
sentencing court plainly intended to waive community custody supervision fees and failed to
reduce that intent to writing. In this case, I am not confident that is what occurred. For that reason,
I would decline to consider this issue under RAP 2.5(a)(3).
CRUSER, J.
3 Similarly, it would be helpful if the court, if it truly intends not to impose community supervision fees, would cross that provision out on the judgment and sentence.