State Of Washington, Respondent V. David Smalley, Appellant

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v. UNPUBLISHED OPINION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, 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 assault charge, and (3) Smalley’s
unlawful possession of a controlled substance must be vacated under State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). Accordingly, we affirm Smalley’s assault and witness tampering
Filed
Washington State
Court of Appeals
Division Two
May 11, 2021

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convictions, reverse his unlawful possession of a controlled substance conviction, and remand
for the trial court to vacate that conviction and for resentencing.1
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.
1 Smalley also challenges the imposition of community custody supervision fees as a legal
financial obligation. Because we are remanding for resentencing, we do not address this issue.

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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.
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.

No. 54348-6-II
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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.
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 trial court determined that Smalley’s offender score for each
conviction was 3, based on the two other current offenses and one prior unlawful possession of a
controlled substance conviction.
Smalley appeals his convictions.
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.
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).

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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.
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

No. 54348-6-II
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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.
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

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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 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
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

No. 54348-6-II
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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. Analysis
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)2, 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
2 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.

No. 54348-6-II
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“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
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).3
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
3 Prado cited to the version of WPIC 35.50 in the 2005 second edition supplement. Prado, 144
Wn. App. at 246.

No. 54348-6-II
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definitions of essential elements because definitions are not themselves essential elements. Pry,
194 Wn.2d at 752; Johnson, 180 Wn.2d at 302.
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. UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE CONVICTION
Smalley challenges his unlawful possession of a controlled substance conviction
following the Supreme Court’s decision in Blake. The State concedes that Smalley’s conviction
must be vacated. We reverse and remand for the trial court to vacate Smalley’s conviction and
for resentencing.
In Blake, the Supreme Court held that Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void.
197 Wn.2d at 195. As a result, any conviction based on that statute is invalid. See In re Pers.
Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004) (a judgment and sentence is
invalid on its face when a defendant is convicted of a nonexistent crime). And a conviction
based on an unconstitutional statute must be vacated. See Blake, 197 Wn.2d at 195; State v.
Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005) (vacating a conviction that was based
on a statute that the Supreme Court held was unconstitutional). Therefore, Smalley’s conviction
for unlawful possession of a controlled substance must be vacated.

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In addition, a conviction based on an unconstitutional statute cannot be considered in
calculating the offender score. See State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718
P.2d 796 (1986). Therefore, Smalley’s offender score must be amended to not include the
vacated conviction and his prior unlawful possession of a controlled substance conviction.
Finally, without the two unlawful possession of a controlled substance convictions,
Smalley’s offender score will be 1 instead of 3. Therefore, Smalley is entitled to be resentenced.
CONCLUSION
We affirm Smalley’s assault and witness tampering convictions, reverse his unlawful
possession of a controlled substance conviction, and remand for the trial court to vacate that
conviction and for resentencing.
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.
We concur:
GLASGOW, A.C.J.
CRUSER, J.