Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                        )
                                            )       No. 66862-5-I
                      Respondent,           )
                                            )
               v.                           )
                                            )       UNPUBLISHED OPINION
KURT CHARLES BOERNER,                       )
                                            )       FILED:  January 30, 2012
                      Appellant.            )
                                            )

       Per Curiam.  Kurt Boerner appeals his conviction for second degree assault.  

His counsel contends, and the State concedes, that the trial court erred in imposing

mental health treatment as a condition of community custody.  A trial court may order a 

mental health evaluation and recommended treatment as a condition of community 

custody only if "the court finds, based on a presentence report and any applicable 

mental status evaluations, that the offender suffers from a mental illness which 

influenced the crime." State v. Jones, 118 Wn.App. 199, 202, 76 P.3d 258 (2003). The 

State concedes "there was no presentence report for the trial court to consider and the 

court did not make the requisite findings."    We accept the concession and remand with 

directions to strike the mental health evaluation/treatment condition from Boerner's 

sentence. 

       Boerner raises several additional claims in his statement of additional grounds  

No. 66862-5-I/2

for review.  He contends the State failed to prove the assault was intentional because 

he denied such intent when he testified at trial, because the victim "signed [a] release 

permission to show it wasn't a violent stabbing," and because the wound was too 

superficial to be intentional.  It is well settled, however, that matters pertaining to the 

credibility of witnesses, conflicting testimony, and the persuasiveness of the evidence 

are the exclusive province of the jury.  State v. Thomas, 150 Wn.2d 821, 874-75, 83 

P.3d 970 (2004).  

       Boerner also criticizes his trial counsel but relies on matters outside the record 

and, in any event, fails to allege a prima facie case of ineffective assistance of counsel.           

His remaining claims do not sufficiently describe "the nature and occurrence" of the 

alleged errors.  RAP 10.10.  

       We affirm Boerner's conviction but remand for the court to strike the challenged 

condition of community custody.  

              FOR THE COURT:

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