Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40526-1-II

                             Respondent,

       v.

RICHARD A. PLECHNER,                                       UNPUBLISHED OPINION

                             Appellant.

       Worswick, A.C.J.  --  Richard Plechner appeals his convictions for second degree assault 

and felony harassment, both with special verdicts for domestic violence.  He argues that (1) his 

right to self-representation was violated, (2) the trial court committed evidentiary error under ER 

404(b), and (3) the evidence is insufficient to support his felony harassment conviction.  He also 

raises a multitude of issues in a statement of additional grounds (SAG).1 We affirm.

                                            FACTS

       On March 17, 2009, Sherri Wurzbacher went to her sister Gina's home.2 Sherri and 

Gina's friend, Shelly Gardner, then left to run an errand.  While they were gone, Plechner, Sherri's 

boyfriend, talked by phone with Gina.  Gina told Plechner that Sherri came to Gina's house early 

that morning to pay back money that Sherri owed to Gina.  Plechner told Gina that he believed 

Sherri had taken the money from him.  After checking his home, Plechner called Gina again and 

1 RAP 10.10.

2 Because Sherri Wurzbacher and Gina Wurzbacher share the same last name, we refer to them by 
their first names, intending no disrespect. 

No. 40526-1-II

told her that all of his money was missing.  Plechner then went to Gina's house to talk to Sherri.

       Plechner arrived at Gina's house before Sherri and Gardner returned.  Gina asked Plechner 

to leave when Sherri and Gardner pulled up in front of the house, but he refused.   He also went 

into the kitchen, telling Gina that he did not want Sherri to see him.  Then, as Sherri entered the 

house, Plechner exited the kitchen and started struggling with her.  He immediately accused Sherri 

of stealing his money.  Plechner then grabbed Sherri's throat and told her that he was going to kill 

her and bury her body at Hanks Lake.

       Gina and Gardner called 911, but Plechner left before Shelton Police Officer Christopher 

Kostad responded.  Shelton Police Detective Harry Heldreth arrived later and interviewed Sherri, 

Gina, and Gardner.  Sherri said that Plechner had strangled her, and Detective Heldreth noticed 

that Sherri's neck was red and appeared to have fresh finger impressions around it.  Shortly 

thereafter, Plechner called Gina, and she allowed Detective Heldreth to speak with him.  During 

his conversation with Detective Heldreth, Plechner denied any knowledge about what happened.

       Detective Heldreth took Sherri to the police station to take her statement and to 

photograph her neck.  Later that day, Plechner called Detective Heldreth at the police station.  

Plechner again denied any knowledge about what happened at Gina's house and stated that "[he] 

was not even there" that day.  3 Report of Proceedings (RP) at 347-48.

       The State charged Plechner with one count of second degree assault by strangulation and 

one count of felony harassment.  Both counts included domestic violence enhancements.  

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No. 40526-1-II

       At trial, the court allowed Detective Heldreth to testify that, in an unrelated January 2009 

police investigation, Plechner had told him that "the next time somebody steals money from him, 

he was not gonna call the cops and he was going to take matters into his own hands."  3 RP at 

355. Then, near the end of the State's case in chief, Plechner sought to represent himself.  He 

expressed his concern that his attorney was not even trying to defend him and stated that he felt 

he had no choice but to continue his representation on his own.  The trial court engaged in the 

followng discussion with Plechner:

       COURT:     Mr. Plechner, at this point you have gone . . . probably halfway through 
       the jury trial with the use of an attorney. . . .  The court would not find that his 
       representation of you has been at all inadequate or incompetent. . . .
             You have indicated that you . . . feel you have no choice, which tells me that 
       . . . this is more of an equivocal request to represent yourself. . . .
             And I'm concerned [about] allowing you to do that . . . because we're in the 
       middle of trial . . . [a]nd you have not had the opportunity . . . to prepare the case.
       . . . .
       PLECHNER: Well, if me and [my counsel] could resolve the two [evidentiary] 
       issues I have . . . then maybe we could go on . . . .
       COURT: [B]ecause you're not familiar with the rules of evidence . . . .     [y]ou 
       could say something in defense of yourself that opens the door to allow the State 
       to get into other evidence that you may not want to entertain.
       . . . .
             I . . . am really weighing towards not allowing you to represent yourself at 
       this juncture [because I am] hearing that the issues are something that I'm thinking 
       . . . can be resolved and . . . you [and your counsel] can go forward . . . I'm 
       concerned with . . . you being unable to put forward what you want because the 
       [c]ourt finds [it inadmissible].  And [then] you're in a weaker position.
       . . . .
       PLECHNER: Your Honor, like I said, I feel I have no choice.
       . . . .
             I'd rather do [an] offer of proof.
       . . . .
       COURT: [Washington] doesn't allow . . . an attorney to be partly representing 
       and not representing you. . . .  [B]ecause we're midstream in trial, I am [going to]
       deny your request to represent yourself for the reasons I have given.
             And . . . you cannot make the offer of proof at this time. . . .  Your attorney 

                                               3 

No. 40526-1-II

       can make an offer of proof for you if he feels he needs to do that, and you also still 
       have . . . the right to testify in your [defense].

3 RP at 290-311. Thus, the trial court denied Plechner's requests to represent himself and to 

make an offer of proof of the evidence he wanted the trial court to admit.  Plechner's attorney 

believed the evidence was inadmissible and declined to make an offer of proof.  Plechner decided 

not to testify in his defense.

       A jury found Plechner guilty as charged.  The trial court then sentenced Plechner to a 

standard range sentence of 80 months on count I and to a standard range sentence of 60 months 

on count II based on an offender score of nine on both counts with both sentences running 

concurrently.  Plechner now appeals.

                                          ANALYSIS

                                     I.  Self-Representation

       Plechner first contends that the trial court denied him his constitutional right to represent 

himself.  Although the constitutional right to self-representation is fundamental, it is neither 

absolute nor self-executing.  Wash. Const. art. I, § 22; Faretta v. California, 422 U.S. 806, 819-

21, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 

714 (2010); State v. Woods, 143 Wn.2d 561, 585 -- 86, 23 P.3d 1046 (2001).  A defendant's 

request to proceed pro se must be both timely and unequivocal.  State v. Stenson, 132 Wn.2d 668, 

742, 940 P.2d 1239 (1997) (trial court did not abuse discretion by denying request to proceed pro 

se based on conditional and equivocal statements). Moreover, a defendant does not have an 

absolute right to choose any particular advocate, and the desire not to be represented by a 

                                               4 

No. 40526-1-II

particular attorney does not by itself constitute an unequivocal request for self-representation. 

State v. DeWeese, 117 Wn.2d 369, 375 -- 76, 816 P.2d 1 (1991). 

       We review a trial court's denial of a request for self-representation for abuse of discretion.   

Madsen, 168 Wn.2d at 504.  A trial court abuses its discretion if its decision is manifestly 

unreasonable, or is exercised on untenable grounds, or for untenable reasons.  State v. Vermillion, 

112 Wn. App. 844, 855, 51 P.3d 188 (2002).  The "court's discretion lies along a continuum, 

corresponding to the timeliness of the request."  Vermillion, 112 Wn. App. at 855.  If the request 

is made during the trial, "the right to proceed pro se rests largely in the informed discretion of the 

trial court."  Vermillion, 112 Wn. App. at 855 (quoting State v. Fritz, 21 Wn. App.  354, 361, 

585 P.2d 173 (1978)).

       Contrary to Plechner's contention, the record clearly supports the trial court's decision to 

deny his request to represent himself.  Following a fairly detailed colloquy, the trial court 

determined that Plechner's request to represent himself was equivocal and that he could not 

capably defend himself pro se.  The trial court further found that because Plechner made his 

request midway through trial, he lacked time to prepare his own defense. Because the trial court 

did not abuse its discretion, Plechner's argument fails.

                                    II.  Prejudicial Evidence

       Plechner next contends that the trial court erred in admitting part of Detective Heldreth's 

testimony.  He argues that the testimony regarding Plechner taking "matters into his own hands"

should have been excluded because it was more prejudicial than probative and was improper ER 

404(b) evidence.

                                               5 

No. 40526-1-II

       "Although relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or 

by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

ER 403.

             Evidence of other crimes, wrongs, or acts is not admissible to prove the 
       character of a person in order to show action in conformity therewith.  It may, 
       however, be admissible for other purposes, such as proof of motive, opportunity, 
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ER 404(b). Nonetheless, if a trial court admits evidence under ER 404(b), it must both identify 

the purpose for which it is admitting the evidence and determine that the evidence is necessary to 

prove an element of the crime charged.  State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 

(1995).

       We review the trial court's decision to admit evidence for an abuse of discretion.  State v. 

Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004).  A trial court abuses its discretion when its 

exercise of that discretion is manifestly unreasonable or based on untenable grounds.  Powell, 126 

Wn.2d at 258.

       The evidence at issue here is Detective Heldreth's testimony that two months before the 

incident involving Sherri, Plechner said that the "next time somebody steals money from him, he 

was not gonna call the cops and he was going to take matters into his own hands."3  3 RP at 355.  

3 Plechner went on to state that "[he would] take the person out and kill them, [so that police 
would] never find the body.  Even if [police found] a blood trail from [his] van to the house, 
[police would] not find a body because [he would] take it out and bury it [at Hanks Lake]."  3 RP 
at 282.  The State conceded that the relevance of this portion of Plechner's statement was 
outweighed by its undue prejudice.  The trial court bifurcated the statement, admitting under ER 
404(b) only the portion of Plechner's statement that he would take matters into his own hands and 
not call police the next time someone stole from him.
                                               6 

No. 40526-1-II

The trial court did not abuse its discretion by allowing the State to introduce this testimony.  The 

State contends this evidence was proper to show Plechner's intent, lack of accident or mistake,

and motive when he assaulted and threatened Sherri because he believed she stole money from 

him. We agree that the trial court's decision to admit this statement for these purposes was 

neither manifestly unreasonable nor based on untenable grounds nor was it unduly prejudicial.

       The improper admission of evidence is harmless error if that evidence is of minor 

significance to evidence that is, as a whole, overwhelming.  State v. Rodriguez, 163 Wn. App 215, 

233, 259 P.3d 1145 (2011).  Even if we were to hold this statement improper under ER 403 or 

ER 404(b), it certainly was harmless in light of the wealth of other evidence implicating Plechner. 

Specifically, both Gina and Gardner testified that they witnessed Plechner attack Sherri, Sherri 

similarly testified that Plechner assaulted her, and Detective Heldreth testified that he noticed 

Sherri's neck was red and appeared to have finger impressions on it.  Based on this other 

admissible evidence, Detective Heldreth's testimony on Plechner's statement that he would take 

matters into his own hands was of minor significance in light of the overwhelming evidence 

against Plechner. Thus, Plechner's argument fails.

                         III.  Sufficient Evidence for Felony Harassment

       Plechner next contends that the evidence was insufficient to support his felony harassment 

conviction.  We review challenges to the sufficiency of the evidence in the light most favorable to 

the State and determine whether any rational trier of fact could have found all the essential 

elements of the crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 

(2006).  Further, our review draws all reasonable inferences from the evidence in favor of the 

                                               7 

No. 40526-1-II

State and we strongly interpret such inferences against the defendant.  Hosier, 157 Wn.2d at 8.  A

defendant admits the truth of the State's evidence and all reasonable inferences that can be drawn 

from it by challenging the sufficiency of the evidence. State v. Brown, 162 Wn.2d 422, 428, 173 

P.3d 245 (2007).  We defer to the fact finder on the persuasiveness of the evidence.  Thomas, 150 

Wn.2d at 874-75.

       To convict a defendant of felony harassment based on a threat to kill, the State must prove 

that the person threatened was placed in reasonable fear that the threat would be carried out.  

RCW 9A.46.020(1)(b); State v. Mills, 154 Wn.2d 1, 10-11, 109 P.3d 415 (2005).  Plechner relies 

on State v. C.G., to support his argument that threats to kill someone are insufficient to support a 

felony harassment conviction if the person threatened did not actually fear being killed but only 

believed that they may be harmed in the future.  150 Wn.2d 604, 607-10, 80 P.3d 594 (2003).  In 

C.G., our Supreme Court found insufficient evidence of such a threat where the juvenile 

defendant told a school vice-principal that she would kill him, and the vice-principal testified that

the defendant's threat caused him concern, not that he actually feared the threat would be carried 

out.  150 Wn.2d at 610.

       Here, Plechner misapplies the C.G. decision to the facts of this case.  There is significant 

evidence in the record to support Plechner's conviction, including Sherri's own testimony that 

Plechner put his hands around her neck and told her that he was going to kill her, along with 

Sherri's further testimony that she was afraid that Plechner would very possibly carry out that 

threat.  Based on this, Plechner's argument on this point fails.

                             IV.  Statement of Additional Grounds

                                               8 

No. 40526-1-II

       Plechner also raises a series of issues in his SAG.  In addition he also filed an 

"interlocutory appeal" pro se with the trial court following his conviction.  Because such an 

appeal was procedurally improper, the county clerk forwarded it to us. We consider it as a 

supplement to his SAG.4

A.     Sentencing Error

       First, Plechner contends that the trial court unfairly sentenced him because the court 

treated felony assault and felony harassment as separate criminal conduct for purposes of 

sentencing, causing him to receive an extra sentencing point.  However, Plechner did not raise this 

issue at the trial court.

       Although a criminal defendant may have the right to challenge an offender score for the 

first time on appeal, a defendant waives that right by alleging an error based on a factual dispute 

or trial court discretion.  In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 

(2002).   Where a defendant is charged with more than one crime, the trial court must make both 

factual and discretionary decisions in determining whether those crimes arose from the same 

criminal conduct.  State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).  Thus, by 

failing to raise the issue of same criminal conduct at sentencing, a defendant waives the right to 

argue that issue on appeal.  State v. Jackson, 150 Wn. App. 877, 892, 209 P.3d 553 (2009); In re 

4 In this supplemental SAG, Plechner raises many of the same arguments as in his other SAG 
submission.  He also relies on factual assertions about matters that are outside the record.  We 
cannot consider matters outside the record on a direct appeal.  State v. McFarland, 127 Wn.2d 
322, 335, 899 P.2d 1251 (1995) ("If a defendant wishes to raise issues on appeal that require 
evidence or facts not in the existing trial record, the appropriate means of doing so is through a 
personal restraint petition.").

                                               9 

No. 40526-1-II

Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158 P.3d 588 (2007). Plechner failed to raise this 

issue during sentencing.  Plechner's attorney even acknowledged that the felony harassment and 

felony assault were"probably not the same criminal conduct."  4 RP at 565.  Because Plechner 

implicitly agreed that his offenses were based on separate criminal conduct and because he did not 

raise this issue below, he waived it on appeal.  Thus, his argument fails.

B.     Testifying in Own Defense

       Plechner next contends that he was denied his constitutional right to testify on his own 

behalf.  The United States Supreme Court has recognized that a criminal defendant has a 

constitutional right to testify on his or her own behalf.  Rock v. Arkansas, 483 U.S. 44, 49, 107 S.

Ct. 2704, 97 L. Ed. 2d 37 (1987).  On the federal level, the defendant's right to testify is implicitly 

grounded in the Fifth, Sixth, and Fourteenth Amendments.  Rock, 483 U.S. at 51-52.  In 

Washington, a criminal defendant's right to testify is explicitly protected under our state 

constitution.  Wash. Const. art. I, § 22.  This right is fundamental, and cannot be abrogated by 

defense counsel or by the court.  State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). 

Only the defendant has the authority to decide whether or not to testify.  Thomas, 128 Wn.2d at 

558. Although the defendant does not need to waive the right to testify on the record, such a 

waiver must be made knowingly, voluntarily, and intelligently. Thomas, 128 Wn.2d  at 558.

       Mere allegations by a defendant that his attorney prevented him from testifying are 

insufficient to justify reconsideration of the defendant's waiver of the right to testify.  State v. 

Robinson, 138 Wn.2d 753, 760, 982 P.2d 590 (1999).  Instead, defendants must show some 

"particularity" to give their claims sufficient credibility and show they warrant further 

                                               10 

No. 40526-1-II

investigation. Robinson, 138 Wn.2d at 760 (quoting Underwood v. Clark, 939 F.2d 473, 476, 

(7th Cir. 1991)).  In doing so, the defendant must "allege specific facts" and must demonstrate 

their credibility from the record.  Robinson, 138 Wn.2d at 760 (quoting Passos-Paternina v. 

United States, 12 F.Supp. 2d 231, 239, (D.P.R. 1998)).

       The record shows that Plechner's attorney advised him not to testify in his defense but 

acknowledged that it was Plechner's case and that he had the right to testify.  The record also 

shows that Plechner decided not to testify after his attorney and the trial court told him nine times 

that he had the right to testify. Because the record does not show his attorney prevented him 

from testifying, Plechner has failed to meet his burden because his SAG fails to allege specific, 

credible facts supporting his argument.  Thus, his argument fails.

C.     Detective Heldreth Medical Expert Testimony

       Plechner also argues that at trial Detective Heldreth was allowed to testify as a medical 

expert regarding his conclusions regarding the strangulation of Sherri.  There is no support in the 

record for this contention. Thus, Plechner's argument fails.

D.     Suppressed Evidence of Victim's Drug Use

       Plechner next contends that the trial court erroneously suppressed evidence of Sherri's 

supposed prior drug use as irrelevant.  Evidence is relevant if it has any tendency to make the 

existence of a material fact more or less probable than it would be without the evidence.  ER 401.  

Irrelevant evidence is inadmissible, even if offered by a criminal defendant in his defense.  ER 402; 

State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009); State v. Maupin, 128 Wn.2d 918, 

925, 913 P.2d 808 (1996).  Although criminal defendants have a constitutional right to present 

                                               11 

No. 40526-1-II

relevant evidence in their defense, this right is not unfettered and the trial court has broad 

discretion in admitting or refusing to admit evidence.  State v. Rehak, 67 Wn. App. 157, 162, 834 

P.2d 651 (1992).  We review a trial court's evidentiary rulings for an abuse of discretion.  Powell, 

126 Wn.2d at 258.

       Here, the trial court did not allow Plechner to ask Sherri whether she took any "controlled 

substances" because it found the question too broad and irrelevant.  2 RP at 201, 203-04.  

Instead, the trial court determined that before inquiring into her drug use, Plechner needed to lay a 

foundation that Sherri's use of specific drugs affected her credibility.  Although Plechner argued 

that Sherri routinely took OxyContin, Vicodin, and methamphetamine such that her ability to 

perceive and relate facts could be compromised, Plechner's attorney discussed the issue with Gina 

and Gardner and did not believe Sherri was under the influence when Plechner met her at Gina's 

house.  Plechner's attorney decided not to pursue questions on Sherri's use of specific drugs 

based on his conversation with Gina and Gardner.  Thus, Plechner's defense did not include any 

evidence of drug use by Sherri.

       Because the trial court found that broad questions on Sherri's general drug use did not 

affect her credibility, it ruled that such questions were clearly irrelevant.  The trial court acted 

within its sound discretion in ruling that Plechner could not make general inquiries into Sherri's 

use of controlled substances.  Further, the trial court did not actually suppress any evidence of 

Sherri's use of specific controlled substances because Plechner's trial counsel decided to "drop 

it." 2 RP at 207.  Therefore, Plechner's argument on this point also fails.

E.     CrR 7.8 Hearing

                                               12 

No. 40526-1-II

       Plechner further contends that the trial court abused its discretion when it failed to follow 

"the mandates for [his] requested CrR 7.8 hearing, without conducting a show cause hearing."  

SAG at 12.  CrR 7.8 provides for relief from a judgment or order in case of clerical errors, 

mistakes, inadvertence, excusable neglect, newly discovered evidence, and fraud, among others.  

However, CrR 7.8(c) requires that a motion for relief from judgment be made by motion and 

supported by affidavits stating the grounds for relief and the facts supporting the motion.  Further, 

we do not consider SAG arguments that do not inform us of the nature and occurrence of the 

alleged error nor are we required to search the record to find support for a defendant's claims.  

RAP 10.10(c).

       Here, the record does not contain either any reference to the grounds for relief or any 

supporting affidavits as required by CrR 7.8.  Indeed, our review of the record produced only one 

speculative reference to a CrR 7.8 motion when Plechner's attorney at sentencing stated: "I think 

I would still have the ability, legally, to file, for example, a CrR 7.8 motion . . . ."  4 RP at 561-62.

It does not appear to us that Plechner actually made a CrR 7.8 motion below and, thus, his SAG 

argument on this point fails to inform us of the nature and occurrence of his alleged error as 

required by RAP 10.10(c).  For this reason, we decline to further consider his argument.

F.     Detective Heldreth ER 404(b) Evidence

       Plechner next contends that the trial court erred when it allowed Detective Heldreth to 

testify regarding Plechner's prior statement that he would take matters into his own hands.  

Because this issue is addressed on direct appeal by counsel, we do not separately consider 

Plechner's similar pro se argument.  State v. Johnston, 100 Wn. App. 126, 132, 996 P.2d 629 

                                               13 

No. 40526-1-II

(2000).

G.     Prosecutor's Prejudicial Statements

       Plechner also contends that the "prosecutor knowingly [let] the jury hear a [bold-faced 

lie]." SAG at 21.  More specifically, Plechner references a report and Detective Heldreth's 

testimony stating that about a month after Plechner confronted Sherri at Gina's house, Plechner 

filed a complaint against Sherri for stealing from him. In order to prevail on this claim, Plechner 

must show that the State knowingly solicited false testimony.  State v. Lopez, 142 Wn. App. 341, 

355, 174 P.3d 1216 (2007).  But Plechner does not show that the State knowingly solicited 

perjured testimony from Detective Heldreth.  Thus, Plechner's argument here fails.

H.     Inferior Degree Offense Instruction

       Plechner next contends that he received ineffective assistance when his counsel failed to 

request an inferior degree instruction for third degree assault.  The Sixth Amendment to the 

United States Constitution and article I, section 22 of the Washington State Constitution 

guarantee effective assistance of counsel.  In re Pers. Restraint of Riley, 122 Wn.2d 772, 779-80, 

863 P.2d 554 (1993); State v. Sardinia, 42 Wn. App. 533, 538, 713 P.2d 122 (1986).  Denial of 

effective assistance is manifest error affecting a constitutional right, reviewable for the first time 

on appeal.  State v. Holley, 75 Wn. App. 191, 197, 876 P.2d 973 (1994); RAP 2.5(a).  We review 

ineffective assistance claims de novo.  State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).

       Washington follows the ineffective assistance of counsel test set forth in Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); In re Pers. Restraint 

of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001).  In order to show that he received ineffective 

                                               14 

No. 40526-1-II

assistance of counsel, a defendant must show (1) that defense counsel's conduct was deficient and 

(2) that the deficient performance resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 

130, 101 P.3d 80 (2004).  Because both prongs must be met; a failure to show prejudice will end 

the inquiry.  State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).

       When the State charges a defendant with an offense that consists of different degrees, the 

jury may find the defendant guilty of an inferior degree than charged.  RCW 10.61.003; RCW 

10.61.010.  But, a defendant is only entitled to an inferior degree jury instruction if:

       (1) the statutes for both the charged offense and the proposed inferior degree 
       offense 'proscribe but one offense'; (2) the information charges an offense that is 
       divided into degrees, and the proposed offense is an inferior degree of the charged 
       offense; and (3) there is evidence that the defendant committed only the inferior 
       offense.

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 

133Wn.2d 885, 891, 948 P.2d 381 (1997)).  The third, factual prong requires evidence that 

affirmatively establishes the defendant's theory that he committed only the inferior degree offense 

and not the offense charged.  Fernandez-Medina, 141 Wn.2d at 455.  

       Here, only the factual prong is at issue.  In his SAG, Plechner fails to present any factual 

evidence.  Because Plechner does not show any factual evidence that he committed only third 

degree assault to the exclusion of second degree assault and fails to cite to the record, we do not 

further address this argument.  RAP 10.3(a)(6); See Habitat Watch v. Skagit County, 155 Wn.2d 

397, 416, 120 P.3d 56 (2005).  Because Plechner failed to show he was entitled to an inferior 

degree offense instruction, he failed to show he was prejudiced by not receiving such an 

instruction.  Since Plechner failed to show prejudice, his ineffective assistance of counsel claim 

                                               15 

No. 40526-1-II

fails.

I.     Prosecutorial Misconduct

       Plechner also raises two additional prosecutorial misconduct "events." SAG at 34, 40.  

But in both of these instances, it is unclear from the SAG and the record citations to what exactly 

Plechner is referring.  See RAP 10.10(c).  For these reasons, we do not address these arguments.

J.     "Domestic Violence" Enhancement

       Plechner contends that it was improper for the State to charge the crimes with domestic 

violence enhancements.  But RCW 10.99.020(3) defines "family or household members" for 

purposes of the domestic violence enhancement to include those who have had a dating 

relationship.  Because Plechner and Sherri were dating, this qualifies and his argument fails.

K.     Bail Pending Appeal

       Plechner also contends that the trial court erred in refusing to set bail pending appeal.  But 

there is no constitutional right to bail pending appeal.  State v. Smith, 84 Wn.2d 498, 499-500, 

527 P.2d 674 (1974). Thus, Plechner's argument fails.

L.     Cumulative Error

       Lastly, Plechner contends that cumulative error denied him his right to a fair trial.  The 

cumulative error doctrine applies when several errors occurred at the trial court that would not 

merit reversal standing alone, but in aggregate effectively denied the defendant a fair trial.  State v. 

Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003).  Because no errors occurred at trial, 

Plechner's argument fails. We affirm.

       A majorityof the panel having determined that this opinion will not be printed in the 

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No. 40526-1-II

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

                                                    ____________________________
                                                             Worswick, A.C.J.

We concur:

______________________________
Armstrong, J.

______________________________
Quinn-Brintnall, J.

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