       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

STATE OF WASHINGTON,                            )       No. 79137-1-I
                                                )
                           Respondent,          )
                                                )
                 v.                             )
                                                )       UNPUBLISHED OPINION
DHILLON, RANDEEP SINGH,                         )
DOB: 12/01/1971,                                )
                                                )
                          Appellant.            )

       BOWMAN, J. — Randeep Singh Dhillon appeals his jury conviction for

aggravated domestic violence felony violation of a no-contact order. He argues

that the trial court erred in denying his motion for a mistrial based on improper

statements his wife made while testifying at trial. Dhillon also filed a statement of

additional grounds for review. We hold that the trial court did not abuse its

discretion in denying Dhillon’s motion for a mistrial and that none of the

arguments made in the statement of additional grounds warrant reversal. We

affirm the conviction.

                                           FACTS

       On December 6, 2017, Everett Municipal Court issued a no-contact order

prohibiting Dhillon from contacting his teenage daughter G.D. The order




     Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79137-1-I/2


prohibited Dhillon from knowingly coming within 500 feet of G.D. and her

residence, school, and workplace. Dhillon signed the no-contact order. Dhillon

immediately moved out of the family home he shared with G.D., his younger

daughter R.D., and his wife Kamalpreet1 and moved in with his sister.

        On December 20, 2017, Dhillon became intoxicated and telephoned his

wife, threatening to kill himself. Dhillon suffered from depression, anxiety, and

alcoholism and had made similar threats in the past. On December 20, Dhillon

requested that his wife pick him up from his sister’s house and bring him home.

Kamalpreet testified that she agreed to bring Dhillon home because G.D. was

away at work and she feared for her husband’s safety.

        At some point after Dhillon returned to the family home, his daughter G.D.

returned home from work. Dhillon argued with and yelled at his wife and

daughters and warned them that he would kill himself if they contacted the police.

Dhillon grabbed a kitchen knife and Kamalpreet called 911. Fearing Dhillon

would overhear her, Kamalpreet disconnected the call. The 911 operator called

back and Kamalpreet told the operator she had misdialed. Meanwhile, Dhillon

locked himself in a bedroom.

        Everett Police Department officers were dispatched to check on the family.

The officers arrived at the home and Kamalpreet explained why she called 911

and told them about the no-contact order. The police discovered Dhillon in the

home with a self-inflicted stab wound. Medics took Dhillon to the hospital for

treatment and the police later arrested him.


        1We refer to Kamalpreet by her first name for purposes of clarity and mean no disrespect
by doing so.


                                               2
No. 79137-1-I/3


       The State charged Dhillon with domestic violence felony violation of a no-

contact order and alleged the aggravating factor that the offense occurred in the

presence of minor children. Dhillon moved to bifurcate the trial. The court

denied the motion. Dhillon stipulated he “has been convicted at least twice for

violating a court order prior to December 20, 2017” and the parties agreed to

read the stipulation to the jury. Dhillon also moved to exclude evidence of prior

domestic violence in the home; police familiarity with the residence; and “other

convictions, infractions, or bad acts.” The court granted the motion.

       At trial, Kamalpreet testified about multiple incidents in the past where she

called 911 because of Dhillon’s drinking and behavior. Dhillon moved for a

mistrial. The court denied his motion but offered a curative instruction. Dhillon

declined the instruction.

       A jury convicted Dhillon as charged of felony violation of a no-contact

order. By special verdict, the jury found the crime was an aggravated domestic

violence offense. The trial court imposed a 41-month standard-range sentence.

Dhillon appeals.

                                     ANALYSIS

       Dhillon argues that the court erred in denying his motion for a mistrial. We

disagree.

       We review a trial court’s denial of a motion for mistrial for abuse of

discretion. State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987). A

trial judge has broad discretion to grant or deny a motion for mistrial prior to the

jury reaching a verdict. State v. Melton, 97 Wn. App. 327, 331-32, 983 P.2d 699




                                          3
No. 79137-1-I/4


(1999). A trial court should grant a mistrial only if the defendant has been so

prejudiced as to require a new trial. State v. Johnson, 124 Wn.2d 57, 76, 873

P.2d 514 (1994). To determine whether an irregularity may have influenced a

jury, the court considers (1) the seriousness of the irregularity, (2) whether the

statement was cumulative of other evidence properly admitted at trial, and (3)

whether an instruction to disregard the statement could have cured the

irregularity. Escalona, 49 Wn. App. at 254 (citing State v. Weber, 99 Wn.2d 158,

165-66, 659 P.2d 1102 (1983)).

          The prosecutor questioned Kamalpreet about events leading up to her 911

call on December 20, 2017 and her conversation with the 911 operator and

police:

          Q.     What happened once [Dhillon] was home?
          A.     He . . . was still drunk, and yelling. Once he gets drunk, he
                 is always yelling. . . .
          ....
          Q.     And how did [the 911 call] come about?
          A.     . . . [He] was really upset, and he — he has been suicidal in
                 the past also. He said he was going to kill himself if 911 got
                 involved this time, because that is something that really
                 makes him mad, calling 911. . . .
          ....
          Q.     Do you remember telling [911] that it was a misdial . . . ?
          A.     . . . I don’t remember exactly. It has happened so many
                 times that we had to call the police when he was drunk, and
                 doing all that, so it could be in this particular situation what I
                 did. That’s the reason why I don’t remember exactly what I
                 said at this time.
          ....
          Q.     Do you remember the officer asking you what prompted
                 [Dhillon] to want to harm himself?
          A.     That’s one of the questions they ask always, so I would say
                 yes.
          ....




                                              4
No. 79137-1-I/5


       A.     . . . [T]here have been so many times that he gets drunk and
              then he yells . . . [s]o that’s why like I don’t remember exactly
              what happened, why — who he was yelling at.

Dhillon did not object to any of the testimony.

       The trial court determined that Kamalpreet’s testimony violated its pretrial

rulings. But not every trial irregularity triggers a mistrial. State v. Garcia, 177

Wn. App. 769, 784, 313 P.3d 422 (2013). Dhillon argues that Kamalpreet’s

testimony is a serious irregularity because it amounts to propensity evidence in

violation of ER 404(b). He cites Escalona in support of his argument. In

Escalona, the State charged the defendant with second degree assault for

threatening the victim with a knife. Escalona, 49 Wn. App. at 252. The victim

testified that Escalona “already has a record” and “had stabbed someone”

before. Escalona, 49 Wn. App. at 253. We held this was propensity evidence

because a jury could conclude that Escalona “acted on this occasion in

conformity with the assaultive character he demonstrated in the past.” Escalona,

49 Wn. App. at 256.

       Here, the State charged Dhillon with domestic violence felony violation of

a no-contact order. At issue was whether he knowingly came within 500 feet of

G.D. or her residence. Kamalpreet’s testimony that she called 911 on prior

instances due to Dhillon’s drinking and yelling is unrelated to whether he

knowingly violated the no-contact order with G.D. It does not amount to

propensity evidence.

       Kamalpreet’s testimony was also cumulative of other testimony elicited at

trial. Dhillon argued that the testimony “opened the door” to questions on cross-




                                           5
No. 79137-1-I/6


examination about Dhillon’s mental illness, prior suicide attempts, and efforts to

“self-medicate[ ]” with alcohol. The trial court permitted the testimony over the

State’s objection. Kamalpreet proceeded to testify about family turmoil from

Dhillon’s mental illness, attempts at self harm, ongoing drinking, fights with his

daughter, and calls to 911. Dhillon testified he did not want Kamalpreet to call

911 because during a prior hospitalization, he “didn’t get enough help” and

“end[ed] up paying a lot of . . . medical bills.” Dhillon used this information to

bolster his theory that he was mentally ill and did not knowingly violate the no-

contact order.

         Finally, the trial court did not instruct the jury to disregard Kamalpreet’s

comments because it did not have the opportunity to do so. Dhillon did not

object to the testimony and rejected a curative instruction when offered by the

court.

         Considering the totality of the circumstances, Kamalpreet’s statements

were not so prejudicial to require a new trial and the court did not abuse its

discretion in denying Dhillon’s motion for a mistrial.

Statement of Additional Grounds

         Dhillon raises several issues in a statement of additional grounds. First,

Dhillon argues that the “State erred and or committed mis-conduct when it

mislead [sic] the court and Jury into believing and Portraying that Appellant

committed a similar crime in year 2012 when the case was dismissed with

Prejudice.” It appears that Dhillon is referring to information about a prior

incident described in the State’s “Affidavit of Probable Cause.” The record does




                                            6
No. 79137-1-I/7


not support Dhillon’s contention that the State used the incident to mislead the

court and the jury. Indeed, Dhillon does not cite to any instance throughout the

course of the trial where the State or defense counsel referenced the 2012

charges.

       Dhillon also argues that his “minor daughter was brought to Trial to testify,

without proper authorization because of her doing mental health [and] behavioral

health treatment at the time of Trial.” Dhillon cites no legal authority for the

proposition that the State required his authorization to call G.D. as a witness and

fails to identify any evidence that G.D. was not competent to testify.2

       Next, Dhillon argues:

       Appellant was subjected to the in-effective assistance of Counsel
       when Counsel failed to object [to] the State, using the year 2012
       case, that was dismissed with Prejudice; failed to call[ ] Defense
       witness to trial; failed to submit, and use exculpatory evidence,
       concerning my/Appellant’s health condition before and during the
       time of Incident on Dec. 20, 2017.

       Courts apply a strong presumption that defense counsel’s trial choices fall

within a wide range of reasonable professional assistance. State v. Grier, 171

Wn.2d 17, 38, 246 P.3d 1260 (2011). This includes decisions in selecting

witnesses and excluding evidence. In re Pers. Restraint Petition of Davis, 152

Wn.2d 647, 742, 101 P.3d 1 (2004); In re Pers. Restraint of Lui, 188 Wn.2d 525,

552, 397 P.3d 90 (2017). An appellant has the burden to prove his counsel

provided both deficient performance and resulting prejudice that caused a

different trial outcome. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816


       2Washington permits minors to testify so long as they are competent. State v. S.J.W.,
170 Wn.2d 92, 99-100, 239 P.3d 568 (2010); RCW 5.60.020, .050. Courts presume witnesses
are competent. S.J.W., 170 Wn.2d at 100.


                                              7
No. 79137-1-I/8


(1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984)).

       As already discussed, Dhillon fails to establish that the 2012 incident was

referenced at trial. Dhillon further clams that his attorney was ineffective

because she did not call his sister as a witness and did not obtain an unrelated

CPS3 report. Dhillon fails to show how his sister had any relevant testimony to

offer at trial. Dhillon addressed the status of the CPS report with the trial court.

The court explained to Dhillon that the CPS investigation would have focused on

the well-being of the children, not on whether Dhillon violated the no-contact

order. There is no evidence Dhillon received ineffective assistance of counsel.

       Finally, Dhillon argues that the trial court abused its discretion in denying

his motion for a mistrial on the grounds that “3 potential jurors” saw him in

handcuffs. The court determined that only 1 juror was in the hallway during an

afternoon break when Dhillon was in handcuffs and escorted by uniformed

officers. The court asked the juror what she saw and the juror said, “Just some

people walking towards the elevator.” The juror stated she did not discuss what

she saw with any other juror. The court excused that juror from the panel at

defense counsel’s request. The trial court did not abuse its discretion in denying

Dhillon’s motion for mistrial.




       3   Child Protective Services.


                                          8
No. 79137-1-I/9


       We affirm the jury conviction for aggravated domestic violence felony

violation of a no-contact order.




WE CONCUR:




                                        9
