STATE v. CHO, 51110-6-I (Wash.App. 7-12-2004)

KENNEDY, J

Kenny Cho appeals his conviction of one count of rendering criminal assistance in the first degree for providing his fellow gang member Sam Turner with `transportation and other means of avoiding discovery or apprehension' after Turner committed first degree assault by firing a gun at rival gang members. Cho argues that the State failed to present sufficient evidence that he acted with the intent to prevent, hinder, or delay Turner's apprehension. He also argues that the prosecutor's repeated references to Cho's failure to immediately report the shooting and to the fact that he denied being present at the shooting when questioned by a detective allowed the jury to convict based on an uncharged alternative means, constituted prosecutorial misconduct, and created the need for a unanimity instruction. Acting pro se, Cho raises several additional grounds for review. We reject Cho's contentions and affirm his conviction.

FACTS

Joseph Garcia was 14 years old when Kenny Cho initiated him into the Rolling '90s CRIPS gang. By July 1999, when Garcia was 16, the Rolling '90s had a rivalry with the Hoover CRIPS that Garcia described as a `battle toward each other.' On July 30, 1999, Garcia was with several members of the Rolling '90s but not Kenny Cho when they met some Hoovers in Westway, and a fist fight broke out. The group dispersed when Garcia fired several shots at the Hoovers, hitting one of them. Cho subsequently learned about the shooting and the fact that several Hoovers were looking for Garcia.

On the evening of August 2, Garcia went riding in Cho's car along with Sam Turner and Ryan Rodgers. After receiving a page, Rodgers asked Cho to drive to Westway so that Rodgers could complete a drug deal. Wanting to avoid the Hoovers and Westway because of the July 30 incident, Cho initially refused, but Rodgers persuaded him. When they arrived at the same block where the July 30 shooting took place, Rodgers got out of the car and went into an apartment building, leaving his gun with Turner.

As Cho, Garcia, and Turner waited in the car, several Hoovers gathered around. One of them, known as `D-Ray,' came up to the car and began pounding on the driver's window, shouting for Cho to get out of the car. Because the windows were tinted such that people inside the vehicle could see out but people outside could not see in, Cho rolled down his window slightly so that D-Ray could see him. D-Ray, who was wearing gloves, continued shouting, and began making comments about the July 30 incident. Cho insisted that he did not know anything about the incident. Meanwhile, Garcia crouched in the back seat, hoping that D-Ray would not notice him.

When Rodgers returned to the car and opened the rear passenger-side door, Sam Turner, who had been sitting in the back seat, leaned his upper body out the car door and fired one shot from the gun that Rodgers had left with him. The bullet struck Eric Solier, who ran away without realizing, at first, that he had been wounded in the arm. Turner and Rodgers got back into the car, shut the door, and began yelling at Cho to drive. Cho attempted to do so, but the car did not move, in that the gearshift was in park. When the others in the car continued to yell at him to drive, Cho shifted into drive and drove away, without exceeding the speed limit. The group went to a park near Turner's wife's house, where they smoked pot and played basketball before going to their respective homes. On the way to the park they passed near a fire station where police were known to congregate. Cho did not stop to report the shooting. Garcia testified that before Cho drove away, Turner stated that he thought he had hit one of the Hoovers.

Eric Solier testified that he ran away from the scene when he heard the shot and only realized later that he had been struck in the arm. He went to the nearby fire station to obtain help for his gunshot wound, and reported the shooting to police.

Two days later, on August 4, police arrested Cho on an unrelated felony warrant, and a detective questioned him about the August 2 shooting. Cho denied that he had been present at the scene of that shooting.

The State charged Cho with rendering criminal assistance in the first degree by information filed September 13, 1999. A jury found Cho guilty on January 13, 2000, but following his successful appeal and remand from this court, the trial court granted his motion for a new trial based on juror misconduct.

See State v. Cho, 108 Wn. App. 315, 30 P.3d 496 (2001).

Cho's second trial was held July 26 to August 1, 2001. Cho testified at the trial that he had not realized that Turner had leaned out of the car and fired the shot; instead, he thought that one of the Hoovers fired the shot at the vehicle, and he did not learn that Turner had fired the shot, and that he probably had hit someone, until later that evening. Cho also testified that it was significant that D-Ray had been wearing gloves this being an indication to gang members that he was armed or intending to fight. Cho admitted lying to the detective who questioned him about the incident three days later, stating that he had been frightened either of what the officer might do, or what his own gang might do to him if he broke the code of silence required of members of his gang.

The jury found Cho guilty as charged. This timely appeal followed.

ANALYSIS

Issue 1: Did the State fail to present sufficient evidence that Cho provided Turner with transportation with intent to prevent, hinder, or delay his apprehension or prosecution for shooting Eric Solier?

Cho first contends that the State failed to present sufficient evidence to prove beyond a reasonable doubt that he provided Turner with transportation with the specific intent required by statute. `[A] person `renders criminal assistance' if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime . . ., he: . . . Provides such person with money, transportation, disguise, or other means of avoiding discovery or apprehension[.]' RCW 9A.76.050(3).

Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Theroff, 95 Wn.2d 385, 388, 622 P.2d 1240 (1980), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A fact finder can infer specific intent as a logical probability from all the facts and circumstances of a case. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).

Relying on State v. Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989), Cho contends that an intent to prevent, hinder, or delay Turner's apprehension could not reasonably be inferred from Cho's patently equivocal conduct. Cho points out that there were no police present when he drove from the scene, there was no victim to assist in that Solier had run away, Cho's vehicle had been surrounded by hostile rival gang members, and that instead of concealing Turner, Cho drove him to an outdoor park and openly associated with him there before driving Turner to his own wife's house.

If he had intended to drive Turner away in order to avoid or delay apprehension, Cho argues, he would at least have attempted to be inconspicuous.

But as the State points out, the issue in State v. Jackson was whether it was error to instruct the jury that it may infer the specific intent required for attempted burglary based on the particular facts of the case. Jackson, 112 Wn.2d at 869-70; State v. Bencivenga, 137 Wn.2d 703, 708, 974 P.2d 832 (1999) (distinguishing Jackson in that the trial court in Bencivenga's case had not instructed the jury on inferences). Where there is no such instruction, the jury is free to determine what is reasonable: Just because there are hypothetically rational alternative conclusions to be drawn from the proven facts, the fact finder is not lawfully barred against discarding one possible inference when it concludes such inference unreasonable under the circumstances. Nothing forbids a jury, or a judge, from logically inferring intent from proven facts, so long as it is satisfied the state has proved that intent beyond a reasonable doubt. An essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.

Bencivenga, 137 Wn.2d at 708-09 (citations omitted).

When viewed in the light most favorable to the State, the evidence proved that Cho drove Rodgers, Garcia, and Turner to Westway, to the same place where he knew that Garcia had recently shot a member of the Hoover gang. When Rodgers got out of the car, Cho overheard the discussion regarding Rodgers' gun and knew that Rodgers left the gun in the car with Turner. Although Cho testified that he did not notice when Rodgers returned and opened the car door because he was looking at D-Ray, and testified that he did not know that it was Turner who had fired the gun, and that he actually thought that the Hoovers were shooting at him when he heard the shot, Garcia testified that Turner said that he had shot someone before Cho drove away. Garcia also testified that he believed that Cho drove away carefully to avoid attracting attention from police. After hearing all the evidence, the jury could rationally reject Cho's explanation and conclude that Cho knew that Turner had shot someone and that he provided Turner with transportation away from the scene in order to help him avoid apprehension. Citing State v. Anderson, 63 Wn. App. 257, 818 P.2d 40 (1991) and State v. Robinson, 73 Wn. App. 851, 872 P.2d 43 (1994), the State contends that a defendant with knowledge that a crime has been committed who drives a perpetrator of the crime away from the scene may properly be found guilty of rendering criminal assistance. In Anderson, the defendant drove Wilson to a tavern. Anderson, 63 Wn. App. at 258. Instead of going into the tavern, Wilson went to a nearby store and robbed the clerk. Wilson ran back to Anderson's car, lay down in the back, and told Anderson that he had just robbed the store. Id. Anderson drove away. Id. Anderson admitted to police, and then testified at trial, that when he drove away, he knew that Wilson had robbed the store. Id. His appeal concerned whether he could be convicted of first degree rendering criminal assistance when he did not have any knowledge of the facts determining the degree of robbery that Wilson had committed. The Anderson court affirmed his conviction. Id. at 259.

In Robinson, the court reversed the juvenile defendant's juvenile adjudication for robbery because the defendant had not known that the robbery was going to happen and had only driven his friend away from the scene of the crime after the robbery was completed. The Robinson court observed that the juvenile's actions `were more in the nature of rendering criminal assistance,' a charge that the State failed to file in that case, than to robbery as an accomplice. Robinson, 73 Wn. App. at 858. Attempting to distinguish these cases, Cho argues that his method of driving and his destination indicate that he did not intend to help Turner hide from the police. But these cases are not about the method of transportation or the defendants' intended destination. Instead, these cases demonstrate that when a person with knowledge that a crime has been committed provides the perpetrator with transportation away from the scene of the crime, it may be reasonable to infer that the person intended to prevent, hinder, or delay the perpetrator's apprehension or prosecution. In sum, the State presented sufficient evidence in the case at bar to prove beyond a reasonable doubt that Cho drove Turner from the scene of the shooting with the requisite criminal intent.

Issue 2: Did the prosecutor's repeated references to Cho's failure to report the shooting and to the fact that he denied being present at the shooting when questioned by a detective allow the jury to convict based on an uncharged alternative means?

Cho next contends that the prosecutor's repeated references in her closing argument to Cho's failure to report the shooting and to his lying to the detective about being at the scene of the shooting renders the jury's verdict suspect and requires reversal of his conviction. In closing the prosecutor argued:

Defendant is a member of the Rolling '90s; had been a member of the Rolling '90s for in excess of two years. We know that on the day of [the] incident he had knowledge that there was a shooting on that block three days prior. We know that on August 2nd of 1999 he chose to drive somebody or three other people onto that block. Once they were there, we[']re in agreement that Sam Turner, one of his gang members, fired a gun from the back of the car, a .45-caliber gun, and that it only the shot hit an individual in the back of the arm. And we know that the defendant then drove the car away.

We know the defendant never went to the police with any of this information and we know that the defendant lied to the police when asked about what happened on August 2nd of 1999. That's what we know. That's what we agree on. Sam Turner committed assault in the first degree. The defendant drove the car away. The defendant then lied about his participation and about Sam Turner's participation about the shooting when he spoke to Detective Gordon.

Report of Proceedings 8/1/02 at 109-10.

Also keep in mind that within a couple blocks from Westway this particular block, by the testimony of Eric Solier, there's a fire department where the police officers also meet. No one stopped there. Kenny Cho thinks they are being fired on. That's what he claims. He doesn't stop. He drives away [at] an average pace not going to draw too much attention. You know why? Because he knew that Sam Turner had just fired a gun from out of his car. Let's be real. There's a gun in the car. He doesn't see a gun anywhere else. I submit to you he was very aware of the people that stood around the car. He knew a gun had been fired out of his car and he drove away. And he drove Sam Turner away. No one else could have done it.

He was behind the wheel. It was his choice when they stopped. It was his choice how long they stayed and it was his choice to drive away. When he drove away he says he later learned that same night. He later learned that Sam Turner said that he thought he had hit somebody. He claims it's a little later. I submit to you guys it's because he thinks that somehow alleviates him of responsibility from removing Sam Turner from the scene of his actions. But his actions on that day, his efforts to continue to help Sam Turner avoid apprehension and discovery, and I'll go through the statute with you in a moment, his efforts to continue to keep Sam Turner from being [caught] continued beyond driving him away beyond transporting him. They continued through and to the end of his lies to Detective Gordon, his lies to protect Sam Turner from getting caught.

I'll get there in a moment. But first I want to talk about that evening because we are going to talk about what kind of person the defendant is and that's something you can use when you evaluate him, when you evaluate his actions and absolutely when you evaluate his testimony. When they left that night there's two different stories. Joseph Garcia claims they were playing basketball, eating ice cream, hanging out with some girls, just the two of them. The defendant says he remembers differently and they smoked pot and they hung out all night.

Believe which one you want. It's the same result. He didn't call the police. He wasn't upset. He didn't need to go home. He didn't need to get away. He didn't want to be out of the situation. He's exactly where he wanted to be with knowledge of what had been done. He was participating with and acting exactly with the people he wanted to be with. He continued to help Sam Turner avoid apprehension and discovery.

So a couple of days later he's arrested. He's brought into the detective and he lies. He says he didn't know anything about it. He wasn't there, someone must be setting him up. People don't like him. He didn't know anything. At that point, as I just said, the defendant continued to render criminal assistance to Sam Turner. By his own testimony he knew that Sam Turner had fired out the window. He knew that Eric Solier had been hit. At that point he made another choice.

Report of Proceedings 8/1/02 at 117-19.

Here's what he did. I want to refer to this. He rendered criminal assistance. I'm going to go through this with you very briefly and you're going to get a copy of this charge in the jury room to find the defendant guilty of rendering assistance. You find that on or about the 2nd day of August 1999 he rendered criminal assistance by providing that person, Sam Turner, with money, transportation, disguise or other means of avoiding discovery or apprehension. We've already talked about that. Not only did he drive him from the scene of the shooting but he continued to render assistance. He continued to help him avoid discovery and apprehension by not telling the police about it. By lying to the police about what he knew. Peer pressure or not. He continued so on at least one occasion and on going throughout his statement to Detective Gordon.

Report of Proceedings 8/1/02 at 120-21.

Even assuming everything the defendant said is true, even assuming despite the fact that it makes no sense that at the scene he somehow just didn't know anything that was going on around him, I didn't know anything. He continued to render criminal assistance when he lied to the detective. Continued to keep Sam Turner safe, free of apprehension.

Keep in mind throughout the time that you evaluate the testimony that everybody must be held responsible for their actions. But today you're here to decide on one person. Evaluate his actions on August 2nd of 1999, before and after, and there's only one verdict that you can come to. There is only one verdict that is actually supported by the evidence and that is that the defendant is guilty of rendering criminal assistance in the first degree. Thank you.

Report of Proceedings 8/1/02 at 122-23.

Although defense counsel objected three times during the prosecutor's closing argument — based on the assumption of facts not in evidence — she did not object to any of the quoted portions. In rebuttal, the prosecutor concluded, again without objection:

What you're holding him responsible for are his choices and his actions on August 2nd of 1999. He knew that Sam Turner had shot out of his car at a group of people. He drove him from the scene of the crime; didn't call the police that night; hung out all night; didn't go to the police with his knowledge. Continued to keep Sam Turner from the police by making the choice to lie not even asking him to go to the police. To lie when confronted about what Sam Turner had done about that shooting. He rendered criminal assistance in the first degree. I'm going to ask you to find him guilty of his crime and hold him responsible for his actions.

Report of Proceedings 8/1/02 at 138.

Contrary to Cho's assertion, these statements did not allow the jury to convict him based on some uncharged alternative means of rendering criminal assistance. Although the jury instructions have been lost and are not included in the clerk's papers, it is clear from the record as a whole that the to-convict instruction included only the charged means of committing the crime, that is, by providing `money, transportation, disguise, or other means of avoiding discovery or apprehension' to Sam Turner, with the requisite criminal intent. RCW 9A.76.050(3); see also Report of Proceedings 8/1/02 at 121 (prosecutor read to the jury a portion of the to-convict instruction).

Cho fails to cite any case to support this contention.

Cho does not argue, nor could he properly argue, that RCW 9A.76.050(3) contains alternate `means within means' of rendering criminal assistance. This statute is merely definitional; it sets forth examples of nonexclusive ways by which a defendant having the requisite intent may assist a felon to avoid discovery or apprehension. Cf., State v. Al-Hamdani, 109 Wn. App. 599, 36 P.3d 1103 (2001), review denied, 148 Wn.2d 1004 (2003) and cases cited therein rejecting any `means within means' analysis of legislative intent.

Each time that the prosecutor referred to Cho's failure to report the incident or to his lie to Detective Gordon, she specifically stated that he was `continuing' to render assistance. The `to convict' instruction, to which no error has been assigned, required the State to prove that Cho provided Turner with transportation `or other means of avoiding discovery or apprehension.' Report of Proceedings 8/1/02 at 121. In these circumstances, the prosecutor's comments did not allow the jury to convict Cho based on an uncharged alternative means.

Issue 3: Did the prosecutor's references to Cho's failure to report the shooting and the fact that he denied being present at the shooting when questioned by the detective constitute prosecutorial misconduct?

Cho also fails to support his prosecutorial misconduct claim. To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). To establish prejudice, the defendant must demonstrate that there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Failure to object to an allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring prejudice that could not have been neutralized by a curative instruction to the jury. Brown, 132 Wn.2d at 561; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). A prosecutor's allegedly improper comments are reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Brown, 132 Wn.2d at 561. Although defense counsel failed to object to any of the comments set out above, after closing arguments and outside the presence of the jury, the following exchange occurred:

[DEFENSE COUNSEL]: And, your Honor, just for the record, I would just like to note that I had a couple of objections during the prosecutor's closing. And the Court had indicated that the objection with that noted. So I didn't note any further objections after I [sic] my third one because the Court seemed to indicate that any ongoing —

THE COURT: That's correct. And let me make it plain. It is the jury's province to determine what the facts are in this case. It is always the jury's province to determine what these facts are in the case. What you can do in your closing argument is argue that those aren't what the facts are. There is no point in getting up and objecting during the argument about what the facts are. And that's the purpose of closing argument, to convince the jury of your interpretation of it. And I prefer people not to object. I think it is totally inappropriate to object to that and it's very disruptive. It's usually used for the purpose of disruption.

[DEFENSE COUNSEL]: Actually, your Honor, my intention was, the purpose of any appellate record, and my understanding is, that in order to preserve any objection it must be made at the time of the objectionable comment and that was my purpose in making those. And I just wanted to note for the record that I believe some of the arguments the prosecutor had made were improper, specifically that he lied to the police that he rendered criminal assistance on August 4th, which there was no evidence of that. That she argued facts that were not in evidence and for the record I'd move for a mistrial based on that.

THE COURT: I listened and my recollection, at least one of your objections, I believe the facts were in evidence. The other I believe was inferentially available from the evidence. So your objections are noted.

Report of Proceedings 8/1/02 at 142-43.

Rather than articulating an objection to the prosecutor's statement of the law, defense counsel focused on the factual basis for the prosecutor's comments and the trial court clearly understood the objections as regarding the factual support for her argument, not her statement of the law. Based on this record, Cho failed to preserve his claim for review.

Cho also fails to establish that the statements misstated the law as contained in the unchallenged instructions. The prosecutor's argument fell well within the parameters of the to-convict instruction, which is the law of the case. Specifically, Cho does not contend that the to-convict instruction, which expressly referred to other, unlisted, means of rendering criminal assistance than transportation, misstated the law. Thus, transportation of Turner was not the `only' charged means by which the jury could have found Cho guilty of rendering criminal assistance. Finally, Cho fails to show that the remarks were so flagrant or ill-intentioned that any prejudice could not have been neutralized by a curative instruction. The central issues contested at trial were Cho's knowledge of Turner's actions and his intent in driving away from the scene of the August 2 shooting. In this context, the prosecutor's references to Cho's failure to report the incident and to his lying about his involvement were legitimate arguments in response to Cho's defense. Basically, the prosecutor argued that if Cho had really believed that D-Ray or one of the other Hoovers had shot at his car and had really driven away because he was afraid as he testified, it would be reasonable to expect him to have behaved differently to drive away quickly, to report the incident once he was out of danger, and to answer honestly when questioned by police. Instead, according to the prosecutor's argument, his later actions demonstrated that his intent when he drove away was to help Turner avoid apprehension. To the extent the prosecutor failed to be absolutely clear that she was arguing about proof of intent rather than any independent basis for a finding of guilt, Cho fails to demonstrate that a curative instruction would not have neutralized any prejudice.

Issue 4: Did the prosecutor's references to Cho's failure to report the shooting and the fact that he denied being present at the shooting when questioned by the detective create the need for a unanimity instruction?

Cho also contends that because the prosecutor argued that the jury could base its finding of rendering criminal assistance on Cho's driving, his failure to report the shooting to the police, or the false statement he made to Detective Gordon, the trial court erred by failing to give a unanimity instruction.

When the State charges one count of criminal conduct and then presents evidence of multiple criminal acts, the State must elect one act for the jury to rely on or the trial court must instruct the jury that all must agree which act is proved beyond a reasonable doubt, in order to ensure jury unanimity. State v. Love, 80 Wn. App. 357, 360-61, 908 P.2d 395 (1996); State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). But a unanimity instruction is not required where the evidence indicates a continuing course of conduct. Petrich, 101 Wn.2d at 571-72. And neither is the prosecutor required to make an election when the evidence indicates an ongoing enterprise. State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d 1000 (1988). Courts must evaluate the underlying facts in a common sense manner to determine whether the evidence establishes a continuing course of conduct. Petrich, 101 Wn.2d at 571. If the defendant's actions are intended to achieve a singular objective, then the evidence tends to establish a continuing course of conduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

Here, the prosecutor's argument regarding the failure to report and the false statement was directed toward Cho's intent in driving away from the scene of the crime and was designed to discredit Cho's alternative explanation for his actions. Each time she mentioned the failure to report or the false statement, the prosecutor described Cho's actions as `continuing' to render criminal assistance in order to demonstrate his intent in driving Turner from the scene and to refute his testimony regarding why he drove from the scene. Under these circumstances, the evidence establishes a continuing course of conduct with a singular objective to help Turner avoid discovery and apprehension. Cho was not entitled to a unanimity instruction. And neither was the State required to make an election.

Cho nevertheless argues that he was entitled to a unanimity instruction or that the State was required to elect because neither Cho's failure to report the crime nor his lie to police about his involvement was a criminal act; thus, Cho reasons, the jury could have convicted him of rendering criminal assistance for an act that was not even criminal in nature. Cho fails to recognize that, to the extent that his failure to report the crime and his lying to police may not have been criminal acts in and of themselves, a unanimity instruction would not have cured the error. To the contrary, a unanimity instruction would have expressly permitted the jury to convict on the basis of the failure to report or the lying to police so long as it did so unanimously. In this light, Cho's argument that the prosecutor was required to make an election would seem to be that she had only one viable election the transportation because, according to Cho, the other acts were not even criminal in nature.

In fact, knowingly providing police with a materially false statement as to a material matter is a gross misdemeanor. See RCW 9A.76.175. And a person who witnesses the actual commission of a violent offense and who without lawful excuse fails to report the matter to the authorities as soon as reasonably possible is guilty of a gross misdemeanor. See RCW 9.69.100. Since neither party has briefed the potential significance of these statutes, we do not address them here. Rather, for purposes of this part of the discussion, we will assume that the failure to report and the lying to police were not in and of themselves criminal in nature.

The State argues that it did in fact elect the transportation, and only used the failure to report and the lie to police to show that Cho drove Turner from the scene with the requisite criminal intent. We do not address this contention in that it is unnecessary in light of our decision that no election was required.

But it is the nature of ongoing criminal enterprises that some of the conduct at issue may not, standing alone, be criminal in nature, but nevertheless may be relevant to show an ongoing criminal enterprise. For example, in Gooden, 51 Wn. App. at 615, the defendant was convicted of two counts of promoting prostitution after he befriended two runaway girls and induced them to commit various acts of prostitution in exchange for money, and to turn the money over to him. Over a period of some 10 days, each of the girls committed several acts of prostitution with several different customers and gave the money they collected from the customers to the defendant. He, in turn, provided the girls with shelter, purchased new clothing for them, rented motel rooms for them, taught them how to solicit customers, told them what to charge for various sex acts, and told them how to respond when questioned about their ages. Id. at 620.

The Gooden court rejected the defendant's claim on appeal that he was entitled to a unanimity instruction or that the prosecutor was required to elect which among several acts of prostitution it relied on for conviction for each count. The appellate court pointed out that the promoting prostitution statute, by its nature, contemplates an ongoing criminal enterprise with a single purpose to make money. Id. We observe that some of the conduct that evidenced the crime of promoting prostitution was not, in and of itself, criminal in nature. It is not a crime to provide persons with shelter, to purchase clothing for them, or to rent motel rooms for them. But these acts, when taken together with teaching the girls how to solicit customers, telling them what to charge for various sexual acts, telling them how to respond to inquiries about their ages, and taking the money they earned in exchange for the sexual acts, evidenced an ongoing course of criminal conduct.

Similarly, here, the rendering criminal assistance statute under which Cho was charged and convicted contemplates an ongoing criminal enterprise with a single purpose to assist a felon to avoid discovery or apprehension. And the statute clearly contemplates that such assistance may be rendered in a number of ways not all of which are listed in the statute. Conduct that might not, in and of itself, be criminal in nature may promote the overall purpose of rendering criminal assistance. The State was entitled to argue from the evidence at trial that Cho's transportation of his fellow gang member, Turner, following the shooting, Cho's failure to report Turner's crime, and Cho's lie to the detective indicated his overall criminal purpose of rendering criminal assistance to Turner, to the end that he escape discovery and apprehension. No unanimity instruction was required, and neither was a prosecutorial election.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

In his pro se statement of additional grounds for review, Cho first contends that the trial court erroneously admitted evidence of his prior first degree robbery and attempted robbery convictions in violation of ER 404(b). But ER 609(a) provides for the admission of convictions for crimes of dishonesty, such as robbery (which includes theft) to attack the credibility of a witness. When he chose to take the stand, Cho became subject to that rule as defense counsel recognized pre-trial.

Cho next argues that the trial court erred by refusing to instruct the jury on duress with WPIC 18.01. Cho contends that he acted under duress in that he believed he was being shot at and feared immediate death or grievous bodily injury if he refused to drive the car from the scene. However, it is not clear from the record whether the defense ever requested a duress instruction. The clerk's papers do not include proposed instructions from the defense and the transcript does not appear to include any discussion regarding duress. Therefore, the issue is not properly before this court. Moreover, there is no evidence in the record that Turner threatened Cho in order to obtain transportation from the scene.

Cho also claims that the trial court violated his right to a speedy trial. A review of the record reveals that the mandate remanding Cho's case to the trial court after the first trial was filed on December 18, 2001. The trial court held a hearing and granted the defense motion for a new trial on March 27, 2002. The trial court signed written findings and conclusions on April 11, 2002, but they were not filed until April 30, 2002. At a hearing on a defense motion to dismiss for a violation of CrR 3.3, the trial court indicated that Cho signed an order setting the trial date on May 9, 2002, without objection. Then, on the day that speedy trial was set to expire, June 24, 2002, defense counsel called in sick because of an ill child, and the case was held over for one day. On June 25, when the case was assigned to Judge Shaffer, the defense filed an affidavit of prejudice. Under CrR3.3(d)(6), speedy trial was extended for an additional 30 days. The trial began before Judge Laura Gene Middaugh on July 26, 2002.

On August 1, 2002, the trial court denied the defense motion to dismiss for a violation of CrR 3.3. At that hearing, defense counsel stated that the time for trial should have begun on March 27, 2002, when the trial court set bail, holding Cho for the new trial, rather than the date the findings and conclusions were filed. However, on May 9, when the trial date was set for June 24 outside of the time for trial by approximately 30 days Cho apparently failed to object, thereby waiving his right to challenge the trial date. Had he timely objected, presumably the trial court would still have had time to set the trial within 60 days of March 27. Based on this record, Cho fails to establish grounds for relief.

Cho argues that the prosecutor committed misconduct by withholding evidence until the day before trial. Police Detective Stan Gordon testified that the defendant said, `so what you're telling me is I pulled into Westway, I got out of the car, I had an altercation or I shot somebody, I got back in the car and I drove away?' Report of Proceedings 7/31/02 at 107-08. Essentially, Cho presents the same argument rejected by the trial court on his CrR 8.3 motion that the State failed to disclose this statement in a timely manner.

In order to require dismissal under CrR 8.3(b), a defendant must demonstrate (1) arbitrary action or government misconduct; and (2) prejudice affecting his right to a fair trial. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). Although mismanagement is sufficient to establish governmental misconduct, dismissal under CrR 8.3(b) is an extraordinary remedy used only in truly egregious cases. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003); see, e.g., State v. Michielli, 132 Wn.2d at 243-45 (dismissal appropriate based on governmental mismanagement where prosecutor amended information to add four additional charges five days before the scheduled trial date despite having possessed all the necessary information regarding the defendant's actions since filing the original information five months before with no explanation for the delay, forcing the defendant to give up right to speedy trial or go to trial unprepared); State v. Sherman, 59 Wn. App. 763, 768, 801 P.2d 274 (1990) (dismissal proper where State agreed to produce complaining witness's IRS forms in the omnibus order but then failed to produce them and failed to move for reconsideration of the order until the day after trial was to have begun). A trial court's decision under CrR 8.3(b) is reviewed for an abuse of discretion. Michielli, 132 Wn.2d at 240. The trial court determined that Detective Gordon arrested Cho on a warrant for a robbery on August 4, 1999, two days after the Turner shooting, and questioned him about both incidents. Following his interview, Detective Gordon wrote two separate reports, one for the robbery investigation and one for the rendering criminal assistance investigation, and filed them separately. Although the reports were similar, they differed in certain details, and the robbery report contained additional words attributed to Cho regarding the Turner incident. When the prosecutor learned of the robbery report on the eve of trial, she immediately sent a copy to defense counsel. Before learning of the report, defense counsel had filed an affidavit of prejudice extending the time for trial by 30 days. Based on these facts, as well as the fact that the report was a summary and additional details could conceivably be revealed during testimony at a 3.5 hearing, the trial court concluded that the State had not mismanaged the case such that dismissal under CrR 8.3 was necessary. Further, the trial court determined that the defense failed to establish prejudice in light of the additional 30 days for trial as a result of the affidavit of prejudice. Based on this record, Cho cannot establish an abuse of discretion.

Finally, Cho claims he was denied effective assistance of counsel when his attorney (1) failed to recognize that his speedy trial rights were violated; (2) pressured him into signing an affidavit of prejudice without diligently explaining the potential consequences; (3) failed to prevent the State from introducing any further evidence in an untimely manner. To establish ineffectiveness, the defendant must show that counsel's performance was deficient and prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). We strongly presume that defense counsel's conduct constituted sound trial strategy. State v. Barragan, 102 Wn. App. 754, 762, 9 P.2d 942 (2000). Thus, one claiming ineffective assistance must show that in light of the entire record, no legitimate strategic or tactical reasons support the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). Prejudice is established where `there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' McFarland, 127 Wn.2d at 335.

Here, a thorough review of the record fails to support Cho's claim. His attorney brought a motion to dismiss for violation of his speedy trial right and the trial court considered and denied it. There is nothing in the record to indicate that defense counsel's decision to file an affidavit of prejudice was not a legitimate strategic or tactical move. As to the State's introduction of evidence, defense counsel brought a CrR 8.3 motion to dismiss based on the State's late disclosure. The record does not support a finding of deficient performance here. Cho has also failed to demonstrate a reasonable probability that, without these alleged errors, the outcome of the trial would have been different.

CONCLUSION

Finding none of Cho's claimed errors to be meritorious, we affirm the judgment and sentence.

KENNEDY, COX, JJ., Concur.

BAKER, J. (dissenting).

The majority affirms Cho's conviction. Because I conclude that the prosecutor's argument may have led the jury to convict Cho 1) without unanimity on which criminal act was proven beyond a reasonable doubt, and 2) of an uncharged alternative means, I respectfully dissent.

During her closing, the prosecutor repeatedly referred to Cho's statement to Detective Gordon as rendering criminal assistance. It is true, as the majority points out, that she characterized this rendering of criminal assistance as a continuation of the first act of transporting Turner away from the crime scene. But Cho completed these two acts two days apart and in separate locations. The different events were not a single, continuous course of conduct.

More importantly, the prosecutor specifically argued that even if the jury assumed that Cho did not understand what was happening at the crime scene, it could still find him guilty of rendering criminal assistance. She argued:

Even assuming everything the defendant said is true, even assuming despite the fact that it makes no sense that at the scene he somehow just didn't know anything that was going on around him, I didn't know anything. He continued to render criminal assistance when he lied to the detective. Continued to keep Sam Turner safe, free of apprehension.

The State claims that the prosecutor was merely explaining that Cho's intent during his transportation of Turner could be inferred from his later actions, including lying to Detective Gordon. But based on the prosecutor's argument, some of the jurors may have thought Cho's statement to Detective Gordon could serve as an independent ground to find Cho guilty.

Because the jury could have found Cho guilty based on the lies he told to Detective Gordon, Cho may have been convicted of an uncharged alternative means. The State charged Cho with rendering criminal assistance by `providing [a person who he knew committed a Class A felony] with transportation and other means of avoiding discovery or apprehension `on or about August 2, 1999.' The State specifically chose to leave out the language `harbors or conceals' The information cannot be considered a fair warning that Cho's act of lying to Detective Gordon on August 4 was included in the charge.

RCW 9A.76.050(1).

Although the language of the information made clear to Cho that the act of lying was not charged, the language used in the instructions did not clearly eliminate the lying as an alternative means on which the jury could find Cho guilty. The jury was told that Cho was charged with `providing . . . Sam Turner, with money, transportation, disguise or other means of avoiding discovery or apprehension.' Given the prosecutor's argument, `other means' could certainly include lying to Detective Gordon. The instructions included `on or about the 2nd day of August' instead of `on August 2, 1999.' To a juror unaccustomed to the language often used in charging documents, the use of `on or about' could include an act committed on August 4, 1999.

The combination of the ambiguous language of the instructions with the prosecutor's closing argument means that Cho could have been found guilty on the basis of the act of lying, and not the act of transporting. Given the possibility that the jury found Cho guilty based on an uncharged alternative means of rendering criminal assistance and the lack of a unanimity instruction, I would reverse.