State Of Washington, V. Ernest J. Kornegay ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 29, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52633-6-II
Respondent,
v.
ERNEST JACKSON KORNEGAY, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Ernest Kornegay assaulted his girlfriend Krystal Whitley multiple times while
they lived together. Eventually Whitley left Kornegay and moved in with a friend. One evening
Kornegay went to the friend’s apartment and asked Whitley for money. After Whitley refused,
Kornegay held up a gun and threatened to “smoke” her if she did not give him some money.
Whitley then handed Kornegay some money, and Kornegay left. Kornegay was eventually
arrested, charged with second degree assault, and ordered to not have contact with Whitley. A few
days prior to Kornegay’s trial, the State amended the information to bring 16 additional charges
that largely involved Kornegay’s abuse of Whitley and his continued contact with Whitley.
Following a bench trial, the judge found Kornegay guilty of two counts of second degree
assault and one count of false imprisonment for the abuse occurring while Kornegay and Whitley
lived together. For the interaction outside the friend’s apartment, the court found Kornegay guilty
of first degree robbery and felony harassment. Because Kornegay had previous convictions for
No. 52633-6-II
second degree robbery and second degree assault, Kornegay was sentenced as a persistent
offender. Kornegay’s offender score also included a prior conviction for unlawful possession of a
controlled substance.
With respect to his convictions, Kornegay contends that his convictions for first degree
robbery and felony harassment must be reversed and dismissed because the trial court’s findings
of fact rest on insufficient evidence, and the findings as written do not support the guilty verdicts.
Kornegay also argues that the trial court erred when it did not sua sponte dismiss all the charges
against him when the State brought new charges a few days prior to trial.
With respect to his sentence, Kornegay argues that he must be resentenced for two reasons:
first, Kornegay contends that recent legislation on persistent offender sentences1 requires
resentencing when one of the prior convictions on which a persistent offender sentence is based is
second degree robbery; second, Kornegay contends that his prior conviction for unlawful
possession of a controlled substance must be stricken from his criminal history score based on our
supreme court’s holding in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).
Kornegay also raises claims of error in a statement of additional grounds (SAG).2
We hold that the trial court’s findings of fact as to Kornegay’s robbery conviction rested
on sufficient evidence, and the findings supported the trial court’s guilty verdict. We also hold,
however, that Kornegay’s felony harassment conviction is not supported by sufficient evidence.
Further, we disagree with Kornegay’s contention that the trial court should have sua sponte found
1
RCW 9.94A.647.
2
RAP 10.10(a).
2
No. 52633-6-II
that the State committed governmental misconduct and dismissed counts 1 through 4, and count
6.
As to Kornegay’s sentence, we hold that Kornegay must be resentenced in accordance with
RCW 9.94A.647, and that his prior conviction for unlawful possession of a controlled substance
must be stricken from his criminal history pursuant to Blake. Finally, we conclude that none of the
issues raised in the SAG have merit.
Accordingly, we affirm in part and reverse in part, and remand for dismissal of Kornegay’s
felony harassment conviction and for resentencing.
FACTS
I. UNDERLYING EVENTS
In September 2015, Kornegay began dating Whitley. The relationship started well, and
approximately a month later Kornegay moved in with Whitley. About seven or eight months later
Kornegay and Whitley started to argue, and the arguments became physical.
A. COUNT 1 – SECOND DEGREE ASSAULT
During one argument, Whitley walked away from Kornegay. Kornegay followed her and
used his hands to cover Whitley’s mouth and nose. Whitley could not talk or breath, and Kornegay
kept his hands over her face until she passed out.
B. COUNTS 2 AND 3 – SECOND DEGREE ASSAULT AND FALSE IMPRISONMENT
On another occasion, Whitley and Kornegay were arguing when Kornegay pinned Whitley
against a door; Whitley told Kornegay to leave her alone and to “get away.” 2 Verbatim Report of
Proceedings (VRP) at 183. Kornegay responded by hitting Whitley on the side of her head. Whitley
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No. 52633-6-II
heard a pop and a whooshing noise. Whitley experienced hearing loss for a couple weeks after the
assault, and she eventually sought medical treatment where she was told that her eardrum was torn.
C. COUNTS 4, 5, 6 – FIRST DEGREE ROBBERY, SECOND DEGREE ASSAULT, AND FELONY
HARASSMENT
Whitley then moved in with a friend, and tried not to see Kornegay anymore. One evening,
shortly after her hearing loss, Whitley and the friend were walking up to the friend’s apartment
after dark when Kornegay approached them. Kornegay told Whitley to “ ‘[c]ome here.’ ” Id. at
188. Whitley “didn’t want to deal with him anymore” and replied, “ ‘What? . . . What do you
want?’ ” Id. Kornegay asked Whitley for money, and Whitley told him that she did not have any
money. Kornegay insisted she did because she worked two jobs. Kornegay followed the women
to the apartment door.
As the friend was opening the door, Kornegay told Whitley, “ ‘If you don’t give me any
money, I’m going to smoke you.’ ” Id. at 189. At that point, Whitley saw that Kornegay was
pointing a gun at her. Whitley replied, “ ‘If you’re going to do it, just do it.’ ” Id. at 190. Whitley
then gave Kornegay some money so he would leave. Whitley went inside, and Kornegay left.
D. INITIAL CHARGE
In December 2016, the State charged Kornegay with second degree assault with a special
allegation of domestic violence. The court issued a no-contact order, prohibiting Kornegay from
contacting Whitley.
II. PRE-TRIAL PROCEEDINGS
On August 29th, Kornegay asked the court for permission to represent himself, and the
court granted the request. The order granting Kornegay’s motion notes that he was advised at that
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time that there were charges being held back and that another arraignment was possible. The trial
was set for September 18, 2017.
On September 15, the court heard several motions. Although Kornegay did not provide this
court with a transcript of this hearing, the clerk’s minute sheet reflects that Kornegay requested a
continuance of the trial so that he could locate several witnesses. Kornegay told the trial court that
he was amenable to setting the trial date “after December.” Clerk’s Papers (CP) at 441. The
minutes also reflect that Kornegay made a motion “for work product,” and asked for permission
to “work on his defense in his cell.” Id. The minute sheet for this hearing also reflects that the State
moved to amend the information and the trial court accepted the second amended information. The
trial court set a new trial date of January 8, 2018. The minute sheet does not reflect that Kornegay
objected to the amendment of the information.
The second amended information detailed the following charges:
 Count 1 – Second Degree Assault by strangulation or suffocation contrary to RCW
9A.36.021(1)(g) with a domestic violence aggravator
 Count 2 – Second Degree Assault with a domestic violence aggravator
 Count 3 – Unlawful Imprisonment with a domestic violence aggravator
 Count 4 – First Degree Robbery with a domestic violence aggravator
 Count 5 – Second Degree Assault with a deadly weapon with a domestic violence
aggravator
 Count 6 – Felony Harassment with a domestic violence aggravator
 Count 7 – First Degree Unlawful Possession of a Firearm3
 Count 8 – Possession of a Stolen Vehicle
 Counts 9 through 15 and Count 18 – Violation of a No-Contact Order
 Counts 16 and 17 – Witness Tampering
Id. at 1-19.
3
The charges for unlawful possession of a firearm and possession of a stolen vehicle were
originally charged in November 2016 under a different cause number. We do not discuss the facts
underlying charges 7-18 because they are irrelevant to our analysis.
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No. 52633-6-II
III. TRIAL
A. GUILTY PLEA TO COUNTS 7 THROUGH 18
On the first day of Kornegay’s bench trial, Kornegay pleaded guilty to counts 7 through
17, and the State filed an amended information that withdrew count 18. Kornegay went forward
with the bench trial on counts 1 through 6.
B. TESTIMONY
At trial, Whitley’s testimony was consistent with the facts above. Regarding the abuse,
Whitley explained, “[w]hen [Kornegay] gets upset, he just hits me.” 2 VRP at 181. “[I]t was kind
of normal that [Kornegay] would hit me all the time. So, I just sat there.” Id. at 184. Whitley often
did not know why Kornegay would become abusive.
Regarding the incident outside the apartment, Whitley explained that when she told
Kornegay to “ ‘just do it’ ” she meant that, “If he was going to shoot me, just shoot me.” Id. at 190.
Whitley testified that she was not scared; instead, she was “tired of dealing with it and all the
threats.” Id. at 191.
C. TRIAL COURT’S FINDINGS AND CONCLUSIONS
Relevant to the issues raised in this appeal, the trial court found Whitley to be a credible
witness, and found that the abuse started in May 2016 and lasted until November 2016. For count
1, second degree assault by suffocation, the court found that Kornegay placed his hands over
Whitley’s mouth and nose until she passed out. For counts 4 and 6, the court found that Kornegay
asked Whitley for money and that she refused to give him anything. The court also found that
Kornegay threatened to “smoke” Whitley and that Whitley then gave Kornegay 10 or 15 dollars
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No. 52633-6-II
to get Kornegay to leave. Furthermore, the court found Whitley was not scared of Kornegay but
that she was tired of dealing with his threats.
Based on its factual findings, the court found Kornegay guilty on counts 1 through 4 and
count 6, and acquitted Kornegay on count 5.
The court sentenced Kornegay to life without the possibility of parole under the persistent
offender statute because Kornegay’s previous offenses included second degree robbery and second
degree assault.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE OF ROBBERY AND FELONY HARASSMENT
Kornegay claims that the court’s findings that Whitley was not afraid and gave Kornegay
the money so he would leave does not support the court’s conclusion that Kornegay was guilty of
first degree robbery and felony harassment. Kornegay further contends that even if the court had
made the requisite findings for those convictions, such findings would not be supported by the
evidence.
The State concedes that it failed to prove all the elements for the robbery and felony
harassment convictions.
We hold that sufficient evidence supports Kornegay’s robbery conviction and reject the
State’s concession as to that conviction. We agree that the felony harassment conviction rests on
insufficient evidence and accept the State’s concession as to that count.
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No. 52633-6-II
A. LEGAL PRINCIPLES
1. Sufficiency of the Evidence
“[F]ollowing a bench trial, appellate review is limited to determining whether substantial
evidence supports the findings of fact and, if so, whether the findings support the conclusions of
law.” State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). “ ‘Substantial evidence’ is
evidence sufficient to persuade a fair-minded person of the truth of the asserted premise.” Id. at
106. When we review challenges to the sufficiency of the evidence, we consider, “whether any
rational fact finder could have found the elements of the crime beyond a reasonable doubt.” Id. at
105. By challenging the sufficiency of the evidence, the defendant admits the truth of the State’s
evidence and all reasonable inferences that arise from the evidence. Id. at 106. Inferences are drawn
in favor of the State and “ ‘interpreted most strongly against the defendant.’ ” Id. (quoting State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We review challenges to the sufficiency of
the evidence de novo. State v. Frahm, 193 Wn.2d 590, 595, 444 P.3d 595 (2019).
2. Robbery
Pursuant to RCW 9A.56.190, a person commits robbery when the person takes personal
property from the victim against the victim’s will by use, or the threat of use, of immediate force,
violence, or fear of injury. In other words, “Robbery encompasses any ‘taking of . . . property [that
is] attended with such circumstances of terror, or such threatening by menace, word or gesture as
in common experience is likely to create an apprehension of danger and induce a [person] to part
with property for the safety of his person.’ ” State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d
888 (2014) (emphasis omitted) (first two alterations in original) (internal quotation marks omitted)
(quoting State v. Shcherenkov, 146 Wn. App. 619, 624-25, 191 P.3d 99 (2008)). We use an
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No. 52633-6-II
objective test to determine “whether an ordinary person in the victim’s position could reasonably
infer a threat of bodily harm from the defendant’s acts.” Id. “ ‘Any force or threat, no matter how
slight, which induces an owner to part with his property is sufficient to sustain a robbery
conviction.’ ” State v. Clark, 190 Wn. App. 736, 756-57, 361 P.3d 168 (2015) (quoting State v.
Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992)).
3. Felony Harassment
A conviction for felony harassment requires that the State prove the defendant threatened
to kill the victim or another individual. RCW 9A.46.020(2)(b). Furthermore, the State must prove
that the victim subjectively understood the defendant’s threat as a genuine expression of intent to
kill. RCW 9A.46.020(1)(a)(i), (iv); State v. J.M., 101 Wn. App. 716, 729, 6 P.3d 607 (2000).
B. ANALYSIS
1. Robbery
Kornegay contends that because the court found that Whitley was not afraid when
Kornegay threatened her, Whitney was not compelled by Kornegay’s threat to kill her when she
handed over the money. He contends that the victim in a robbery must subjectively experience
fear, and since Whitley reported not experiencing such fear, his robbery conviction rests on
insufficient evidence.
Witherspoon, 180 Wn.2d at 884, is instructive because the defendant in that case made the
same argument that Kornegay makes here. In Witherspoon, the defendant argued he could not be
convicted of robbery where the evidence did not show that he instilled fear in the victim. Id. Our
supreme court disagreed, noting intimidation is determined using an objective test. Id. “We
consider whether an ordinary person in the victim’s position could reasonably infer a threat of
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No. 52633-6-II
bodily harm from the defendant’s acts.” Id. Because Witherspoon told the victim that he had a gun
just prior to taking her property, the court concluded that a rational jury could have found that the
defendant threatened to use force if necessary to retain the victim’s property. Id. at 885.
Kornegay similarly argues that because Whitley did not subjectively experience fear, the
State failed to prove he committed robbery. But this is the same subjective fear argument rejected
by the supreme court in Witherspoon. Id. at 884. The question before us is whether a rational jury
could infer that a reasonable person in Whitley’s position could interpret Kornegay’s actions as a
threat of force used to obtain or retain the stolen property. Id. Taking the evidence in the light most
favorable to the State, we answer that question in the affirmative. Kornegay does not dispute that
the evidence, and the court’s findings, establish that Kornegay pointed a gun at Whitley and
threatened to shoot her if she did not give him money. Therefore, a rational factfinder could have
found Kornegay’s actions were a threat that he would use force if necessary to obtain Whitley’s
property.
Furthermore, we are unpersuaded by Kornegay’s argument that his threat did not induce
Whitley to part with her property because she testified, and the court found, that Whitley gave
Kornegay the money so he would leave. “ ‘Any force or threat, no matter how slight, which induces
an owner to part with his property is sufficient to sustain a robbery conviction.’ ” Clark, 190 Wn.
App. at 756-57 (quoting Handburgh, 119 Wn.2d at 293). Kornegay asked Whitley for money, and
Whitley refused. Kornegay then threatened to harm her if she did not give him the money; only
after that threat did Whitley hand over the money. Taking the evidence in the light most favorable
to the State, we think it reasonable for the jury to infer that Kornegay’s threat induced Whitley to
hand over the money so that Kornegay, the man threatening to harm her, would go away. The
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No. 52633-6-II
evidence is clear that what occurred was the “ ‘taking of . . . property [that was] attended with such
circumstances of terror, or such threatening by menace, word or gesture as in common experience
is likely to create an apprehension of danger and induce a man to part with property for the safety
of his person.’ ” See Witherspoon, 180 Wn.2d at 884 (alterations in original) (internal quotation
marks omitted) (quoting Shcherenkov, 146 Wn. App. at 624-25).
The evidence is sufficient to sustain Kornegay’s robbery conviction.
2. Felony Harassment
Kornegay also contends that because the trial court found that Whitley did not fear
Kornegay’s threat, there was insufficient evidence to support his felony harassment conviction.
The State concedes that the evidence is insufficient to sustain Kornegay’s felony harassment
conviction.
We agree that the evidence is insufficient to sustain Kornegay’s felony harassment
conviction.
Pursuant to RCW 9A.46.020(1)(a)(i), (iv), a person commits felony harassment when,
without lawful authority, the person threatens to kill another person and the person threatened
reasonably believes that the threat will be carried out. Unlike the analysis pertaining to Kornegay’s
robbery conviction, to sustain his conviction for felony harassment the evidence must show that
Whitley subjectively feared that Kornegay would carry out his threat to kill her, and that such fear
on her part was reasonable. State v. C.G., 150 Wn.2d 604, 610, 80 P.3d 594 (2003); J.M., 101 Wn.
App. at 729.
Here, there is no evidence that Whitley believed that Kornegay’s threat to “smoke” her was
a threat to kill her, or that she believed Kornegay would carry the threat out. C.G., 150 Wn.2d at
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No. 52633-6-II
610; J.M., 101 Wn. App. at 729. Accordingly, we reverse Kornegay’s felony harassment
conviction for insufficient evidence.
II. PERSISTENT OFFENDER STATUTE AND BLAKE
Kornegay argues he must be resentenced due to recent legislative action that requires a
defendant to be resentenced if their persistent offender sentence was based on second degree
robbery and the supreme court’s recent decision declaring Washington’s strict liability drug
possession statute unconstitutional. The State concedes that resentencing is necessary. We agree
that Kornegay is entitled to resentencing.
While Kornegay’s appeal was pending, the state legislature enacted RCW 9.94A.647 that
went into effect on July 25, 2021. LAWS OF 2021, ch. 141, § 1. Under RCW 9.94A.647, if “an
offender has been sentenced as a persistent offender, the offender must have a resentencing hearing
if a current or past conviction for robbery in the second degree was used as a basis for the finding
that the offender was a persistent offender.” Accordingly, because a second degree robbery
conviction was used as a basis for Kornegay’s persistent offender sentence, Kornegay must be
resentenced.4
Furthermore, in Blake, 197 Wn.2d at 195, the supreme court held that former RCW
69.50.4013(1) (2017), Washington’s strict liability drug possession statute, is void because it
4
We note that Kornegay states that he should be resentenced “under the standard sentencing grid.”
Supp. Br. of Appellant at 6. The State correctly notes that the trial court found, acting as the fact
finder, the existence of aggravating factors under RCW 9.94A.535. Given that Kornegay did not
make any assignment of error related to the aggravating factors, and his brief does not include any
argument regarding the aggravators, we understand his language regarding the standard range to
be an inadvertent addition. To the extent Kornegay is challenging the aggravating factors with this
passing statement, we decline to consider such a challenge. RAP 10.3(a)(6); Holland v. City of
Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)(noting that “[p]assing treatment of an issue
or lack of reasoned argument” does not merit our consideration).
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No. 52633-6-II
violates state and federal due process clauses. When a conviction is based on an unconstitutional
statute, that conviction 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). On remand Kornegay’s
previous conviction for unlawful possession of a controlled substance cannot count towards
Kornegay’s offender score, and Kornegay must be resentenced accordingly.
III. GOVERNMENTAL MISCONDUCT
Kornegay argues that the trial court erred when it did not, sua sponte, find that the State
engaged in government misconduct by adding charges the last court day before Kornegay’s trial,
and did not thereby dismiss counts 1 through 4 and count 6.
We find no error.
A. CrR 8.3
Under CrR 8.3(b), the trial court, on its own motion and “after notice and hearing, may
dismiss [a] criminal prosecution due to arbitrary action or governmental misconduct when there
has been prejudice to the rights of the accused which materially affect the accused’s right to a fair
trial.”
B. ANALYSIS
Kornegay’s claim of governmental misconduct stemming from the State’s addition of
charges on September 15th warranting dismissal under CrR 8.3 is raised for the first time on
appeal. Kornegay contends that the trial court was required, sua sponte, to hold a hearing under
CrR 8.3(b) to determine whether the State engaged in arbitrary action or governmental misconduct.
But Kornegay cites no authority holding that the superior court has such a duty. When “no
authorities are cited in support of a proposition, the court is not required to search out authorities,
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but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).
Moreover, Kornegay did not provide this court with a transcript of the hearing at which the
trial court granted the State’s motion to amend the information adding new counts, and at which
Kornegay requested a continuance of the trial. Instead, Kornegay provided this court with the
clerk’s minute sheet memorializing what occurred at this September 15, 2017 hearing. At this
hearing, the minutes merely reflect that Kornegay requested a continuance of the trial so that he
could locate several witnesses. The minutes also reflect that Kornegay made a motion “for work
product,” and asked for permission to “work on his defense in his cell.” CP at 441.
Even if Kornegay had persuaded us that the trial court erred in not sua sponte raising a
claim of governmental misconduct, we cannot even determine whether the continuance in this case
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No. 52633-6-II
was caused by the State’s amendment to the information or by Kornegay’s desire for more time to
locate witnesses he intended to produce at trial. 5
5
To the extent Kornegay contends, in a footnote, that a claim of governmental misconduct under
CrR 8.3(b) may be brought for the first time in this court, this argument fails. First, CrR 8.3(b) is
a superior court motion, and by its plain language it requires a hearing in superior court. Second,
RAP 2.5 does not apply to this claim because Kornegay does not argue, in this assignment of error,
that his constitutional right to a speedy trial was violated. Rather, he claims, at most, that the State’s
late amendment to the information was unreasonable and that his trial was needlessly continued to
accommodate the amendment. Kornegay fails to cite any authority addressing the constitutional
right to a speedy trial, nor does his argument set forth the test we are to apply for determining
whether this right has been violated. Holland, 90 Wn. App. at 538 (noting “[p]assing treatment of
an issue or lack of reasoned argument” does not merit our consideration); DeHeer, 60 Wn.2d at
126.
Instead, Kornegay relies entirely on State v. Michielli, 132 Wn.2d 229, 245, 937 P.2d 587(1997). However, Michielli lends no support to Kornegay’s argument. In Michielli, the State
amended the information three business days before the scheduled trial. Id. at 233. Michielli was
forced to waive his right to a speedy trial under CrR 3.3 because his attorney was unprepared to
go to trial on the amended charges. Id. The trial court granted Michielli’s motion to dismiss the
amended information under CrR 8.3(b). Id. at 233-34. Our supreme court affirmed the trial court,
holding that mismanagement such as what occurred in Michielli’s case is sufficient to satisfy the
governmental misconduct standard set forth in CrR 8.3(b). Id. at 244-45. Because Michielli
involved a CrR 8.3(b) challenge that was litigated in the trial court, it is wholly inapposite to this
case.
Even assuming Kornegay had identified a specific constitutional right that was violated, he
fails to show that the alleged error was manifest. Kornegay does not allege that his defense was
inadequate due to the late amendment, nor does Kornegay show that the amended information
forced him to request a continuance and waive his right to a speedy trial under CrR 3.3. As we
note, the record Kornegay provided to this court does not demonstrate that Kornegay’s reason for
requesting a continuance was the State’s late amendment to the information.
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No. 52633-6-II
Kornegay fails to demonstrate error in the trial court’s failure to dismiss counts 1-4, and
count 6, sua sponte.6
SAG
A. INSUFFICIENT EVIDENCE
1. Second Degree Assault by Suffocation, Count 1
Kornegay argues that insufficient evidence supports his second degree assault by
suffocation conviction, count 1, because there was no evidence that the assault occurred in a
bathroom.
Here, there is sufficient evidence to support a second degree assault conviction. “A person
is guilty of assault in the second degree if he . . . [a]ssaults another by strangulation or suffocation.”
RCW 9A.36.021(1)(g). The trial court found that Kornegay put both of his hands over Whitley’s
mouth and nose in a manner that prevented Whitley breathing and that he held his hands there until
Whitley passed out. Both of these findings are supported by Whitley’s testimony.
Nothing in RCW 9A.36.021(1)(g) limits this charge to assaults occurring in certain
locations. Whether the assault occurred in the bathroom or in the bedroom is not an element of an
assault charge, and the exact location of an assault is not an essential element that the State must
prove.
6
Kornegay includes an assignment of error stating “Kornegay received ineffective assistance of
counsel.” Br. of Appellant at 2 (assignment of error 5). However, Kornegay abandons this
assignment of error by making no argument about it in his brief. Other than the portions of his
factual statement where he mentions that he raised a claim of ineffective assistance of counsel
below, Kornegay never mentions ineffective assistance of counsel again. As such, we do not
address this assignment of error. RAP 10.3(a)(6) (requiring a party to supply in its brief, “argument
in support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record.”).
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We conclude that there was sufficient evidence for the second degree assault conviction
for count 1.
2. Domestic Violence Aggravator
Kornegay argues there is insufficient evidence to support the prolonged period of time
element for the aggravating circumstance of domestic violence because that element requires years
of abuse. We disagree.
Whether abuse occurred over a prolonged period of time is a factual determination reserved
for the fact finder. State v. Sandoval, 8 Wn. App. 2d 267, 279, 438 P.3d 165 (2019). Courts have
held that evidence of less than two months of abuse is sufficient to support the fact finder’s
determination that the abuse occurred over a prolonged period of time. State v. Brush, 5 Wn. App.
2d 40, 64-65, 425 P.3d 545 (2018); State v. Epefanio, 156 Wn. App. 378, 392, 234 P.3d 253 (2010).
Here, the court found, and Whitley testified, that the abuse lasted from April or May to November,
approximately seven months. Therefore, we conclude there was sufficient evidence that the abuse
occurred for a prolonged period of time.
B. UNCHARGED OFFENSE
Kornegay also claims that his conviction for count 1 was based off an uncharged offense.
The basis of Kornegay’s claim is unclear. Kornegay was charged with second degree assault under
RCW 9.36.021(1)(g) for count 1 and was likewise convicted of second degree assault based on
RCW 9.36.021(1)(g) for count 1. Kornegay’s claim fails.
C. PROSECUTORIAL MISCONDUCT
Kornegay argues that the prosecutor engaged in misconduct by expressing personal
opinions regarding witness credibility.
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No. 52633-6-II
When the defendant does not object to the prosecutor’s remarks, a defendant
waives the prosecutorial misconduct claim unless the defendant shows (1) that
comments were improper, (2) that the prosecutor’s comments were both flagrant
and ill-intentioned, (3) that the effect of the improper comments could not have
been obviated by a curative instruction, and (4) a substantial likelihood the
misconduct affected the verdict.
State v. Gouley, 19 Wn. App. 2d 185, 200, 494 P.3d 458 (2021), review denied, ___ Wn.2d ____,
502 P.3d 854 (2022).
Here, Kornegay did not object to the prosecutor’s comments at trial and fails to provide us
with any arguments regarding curative instructions or whether there was a substantial likelihood
that the alleged misconduct affected the verdict. We conclude that Kornegay fails to make the
requisite showing to sustain his prosecutorial misconduct claim.
D. INSUFFICIENT CHARGING DOCUMENT
Kornegay claims that the information was insufficient because it merely recites the
underlying statutes, it is vague, and there are missing elements.
We decline to consider this issue because Kornegay fails to provide sufficient details to
appraise us of the nature of the alleged error as is required. RAP 10.10(c); State v. Griepsma, 17
Wn. App. 2d 606, 623, 490 P.3d 239, review denied, 198 Wn.2d 1016 (2021). Kornegay states that
the information is insufficient because it merely recites the language from the underlying statute.
However, merely reciting the language from the statute is not automatically grounds for an
insufficient information. State v. Delcambre, 116 Wn.2d 444, 450-51, 805 P.2d 233 (1991).
Furthermore, Kornegay does not identify the counts he believes are vague. Nor does Kornegay
identify the counts that he believes are missing elements or what elements are missing. We are not
obligated to search the record to find an error that might support Kornegay’s allegations. RAP
10.10 (c).
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No. 52633-6-II
E. SPEEDY TRIAL
Kornegay contends that his constitutional right to a speedy trial was “triggered” when he
was placed under arrest for possession of a stolen motor vehicle, unlawful possession of a firearm,
and a Department of Corrections warrant, rather than two weeks later when, he claims, he was
“charged with those crimes.” SAG at 4. Thus, he contends, his constitutional right to a speedy trial
was violated. Even assuming Kornegay is correct in his rendition of the events related to his arrest
and the filing of charges, Kornegay does not tell us how this resulted in a violation of his
constitutional right to a speedy trial.
Under the Sixth Amendment to the United States Constitution and article 1, section 22 of
the state constitution, a defendant is guaranteed the right to a speedy trial. We employ the test
outlined in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), to determine
whether a defendant has suffered a violation of his constitutional right to a speedy trial. State v.
Nov, 14 Wn. App. 2d 114, 128, 469 P.3d 352 (2020), review denied, 196 Wn.2d 1034 (2021). The
Barker factors include the “[l]ength of delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.” Barker, 407 U.S. at 530. Considering these factors, we
discern no violation of Kornegay’s constitutional right to a speedy trial even if his speedy trial
rights were “triggered” at the time of his arrest.7
7
Kornegay also mentions the State’s amendment to the information and claims he was forced to
waive his CrR 3.3 right to a speedy trial in order to prepare his defense, resulting in a violation of
his constitutional right to a speedy trial. But as we note above, the record provided to us on review
demonstrates that Kornegay sought a continuance, at least in part, because he needed to locate
witnesses he intended to call in his case. The limited record we were provided does not demonstrate
that Kornegay was motivated to seek a continuance based on the amendment of the information.
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No. 52633-6-II
F. CUMULATIVE ERROR
Finally, Kornegay argues there was cumulative error. But the only error established in
Kornegay’s brief or SAG was regarding his felony harassment conviction. Without multiple errors,
there can be no cumulative error. In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d
660 (2014) (“The cumulative error doctrine applies where a combination of trial errors denies the
accused of a fair trial, even where any one of the errors, taken individually, would be harmless.”),
abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). Therefore,
because there was only one error, there was no cumulative error.
CONCLUSION
We hold that due to recent legislation regarding persistent offenders, RCW 9.94A.647, and
the supreme court’s decision in Blake, Kornegay must be resentenced in accordance with those
changes. Additionally, we conclude that the evidence and the court’s findings do not support its
conclusion that Kornegay was guilty of felony harassment. However, we conclude that the trial
court’s findings support a conclusion that Kornegay was guilty of first degree robbery and that the
evidence supports the court’s findings on that count. Further, we conclude that the court did not
err in failing to dismiss counts 1 through 4 and count 6. Finally, we hold that none of the issues in
Kornegay’s SAG warrant reversal or remand. Accordingly, we affirm in part, reverse in part and
remand for further proceedings in accordance with this opinion.
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.
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No. 52633-6-II
CRUSER, J.
We concur:
WORSWICK, J.
GLASGOW, A.C.J.
21