State Of Washington, Respondent V. Sudeshkumar S. Kothari, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SUDESHKUMAR S. KOTHARI,
Appellant.
No. 69564-9-
DIVISION ONE
UNPUBLISHED OPINION
FILED: March 17, 2014
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Grosse, J. 	— Sudeshkumar Kothari appeals 	his 	convictions for first degree
burglary-domestic 	violence, 	second 	degree 	assault-domestic 	violence, 	and
misdemeanor violation of a court order, arguing that the trial court erred in instructing
the jury that it had a "duty to return a verdict of guilty" if it found all the elements of the
offense beyond a reasonable doubt. 	This argument is contrary to controlling authority.
State v. Ryan Moore. 	Wn. App. 	, 318 P.3d 296 (2014) and the cases cited therein.
In his statement of additional grounds, Kothari challenges the sufficiency of the
evidence. 	Kothari's arguments amount to an attack on the credibility of the witnesses at
trial, including the victim. 	But we do not disturb credibility determinations on appeal.1
Kothari also contends that he was denied his right to represent himself and that
he was coerced into accepting counsel. 	The federal and state constitutions guarantee a
defendant the right to self-representation.2 	To exercise the right, the defendant must
make an unequivocal, knowing, intelligent, and timely request. 	A trial court's denial of a
1 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
2 U.S. Const, amends. VI, XIV; Wash. Const, art. I, § 22; see also Faretta v. California,
422 U.S. 806, 828-29, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

No. 69564-9-1 / 2
request for self-representation is reviewed for abuse of discretion.3 	The court engaged
Kothari in a colloquy and ultimately determined that Kothari's request was equivocal.
Here, Kothari only wanted to proceed pro se if he could use the services of his counsel.
The court informed Kothari that he did not have a legal right to stand-by counsel. 	A
decision to offer stand-by counsel would be made at the court's discretion only after
Kothari made his decision to proceed pro se, recognizing that he might not receive
stand-by counsel. 	Kothari told the court that he wanted to proceed pro se but that he
was doing it "under duress." 	This was equivocal. 	Under these circumstances, the trial
court did not abuse its discretion in denying Kothari the right to proceed pro se.
Kothari also complains that the court erred in denying his motion for a new trial
on grounds of ineffective assistance of counsel. 	Counsel was appointed to represent
Kothari 	in 	his 	motion 	for 	a 	new 	trial 	because 	he 	challenged 	his 	trial 	counsel's
performance. 	The trial court received an affidavit from Kothari's trial counsel and the
court considered oral and written arguments. The trial court denied the motion.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
that his counsel's performance fell below an objective standard of reasonableness and
that this deficient performance prejudiced his trial.4 	Both prongs must be satisfied.
There is a strong presumption of effective representation of counsel and the defendant
must show that there was no legitimate strategic or tactical reason for the challenged
conduct.5
3 State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
4 Strickland v. Washington. 466 U.S. 668, 687, 104 S. 	Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
5 McFarland, 127 Wn.2d at 336.

No. 69564-9-1 / 3
On appeal, 	Kothari asserts his trial counsel was ineffective because counsel
failed to advise Kothari that he could not assert self-defense. 	A criminal defendant is
entitled to have the trial court instruct upon his or her theory of the case so long as there
is evidence to support that theory.6 	Here, there was no such evidence. 	Moreover, prior
to the trial starting, Kothari's counsel clearly stated that self-defense was not available
because 	of 	the 	alleged 	unlawful 	entry. 	Kothari 	entered 	his 	ex-wife's 	home 	in
contravention of a restraining order and committed an assault by repeatedly (some 25
to 30 times) giving the victim electric shocks from a runt (similar to a taser) device.
Kothari maintained that he did this in self-defense. 	Kothari's teenage daughter was at
home at the time of the assault and witnessed Kothari repeatedly jabbing her mother
with an object that looked like a taser. 	The daughter witnessed several blue sparks
coming from 	her mother as 	Kothari continued to shove the implement against her
mother while the mother was lying on the floor. 	There was no evidence that supported
such an instruction 	other than 	Kothari's self-serving statements.7 	Kothari was not
entitled to a self-defense instruction.
Kothari also claims that he was never informed of his right to not take the stand.
Throughout the trial there are numerous instances that indicate Kothari's desire to
testify, to tell his side of the story. 	Kothari argues here, as he did below, that had he
known self-defense was not available to 	him, 	he would 	not have taken the stand.
Whether or not Kothari testified in this instance had no bearing on the outcome of the
case, as the evidence was overwhelming that Kothari entered the home in violation of a
protection order and assaulted his ex-wife.
6 State v. Hughes, 106Wn.2d176, 191,721 P.2d 902 (1986).
7State v. Calvin, 	Wn. App. 	, 316 P.3d 496 (2013).
3

No. 69564-9-1 / 4
Kothari's 	claims of prosecutorial 	misconduct are 	baseless. 	The essence of
Kothari's argument seems to 	be that misconduct occurred 	because the 	prosecutor
called 	the victim and 	witnesses to 	the 	stand 	knowing 	the 	statements were false.
Likewise, Kothari's claims of bias on the part of the trial judge are without merit. 	These
generalized and unsupported claims of judicial bias do not merit review.
Affirmed.
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WE CONCUR:
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