              VILEti
      COAT OF APPEALS DIV I
       STATE OF WASHINGTON

       2018 JUL -2 AN 11: 12


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                       )
                                                )         No. 75144-1-1
                       Respondent,              )
                                                )         DIVISION ONE
               v.                               )
                                                )         UNPUBLISHED OPINION
 COREY ASTANLIVIN MANN,                         )
                                                )
                    • Appellant,                )
                                                )
 GARY BERNARD SANDERS II,                       )
                                                )
                       Defendant.               )         FILED: July 2, 2018
                                                )
       APPELWICK, C.J. — Mann was convicted of first degree felony murder. He
argues that the trial court erred in denying his motion to sever the trial from his

codefendant, in refusing to instruct the jury on the inferior offense of second degree

felony murder, and in denying his motions for mistrial after references to his

criminal history. He also argues that the State failed to prove first degree burglary,

one of the offered alternative predicate crimes for felony murder. And, he argues

that he received ineffective assistance of counsel, and that cumulative errors

deprived him of a fair trial. We affirm.

                                       FACTS

       In 2013, Tiana Wood-Sims reconnected with Latasha Walker, an

acquaintance from high school, and soon they began using drugs together. Walker

also sold drugs out of the apartment she shared with her boyfriend, Kenneth
No. 75144-1-1/2


McGee. Wood-Sims saw drugs and money in Walker's apartment. Wood-Sims

told her cousin, Corey Mann, about the drugs and money in Walker's apartment,

and they agreed to rob Walker.

       On June 3, 2013, Wood-Sims spent the day with Walker away from

Walker's apartment. Throughout the day, Wood-Sims stayed in contact with Mann,

informing him of where she and Walker were,so that Mann could rob the apartment

while they were gone. Michael Galloway testified that on that day Mann met him

at a skate park and told him about the plan to rob Walker's apartment. Mann was

also with Gary Sanders, whom Mann introduced to Galloway as his brother-in-law.

Galloway agreed to go with Mann. Galloway drove Mann and Sanders to the

apartment building for the robbery, following Mann's instructions.

      At the apartment, Mann indicated for Galloway to knock on the front door.

After Galloway knocked, they saw someone coming so Galloway, Sanders, and

Mann returned to the car. Wood-Sims sent Mann a text message that she and

Walker were back at Walker's apartment. About 10 to 15 minutes later, the three

men went to the apartment door. Wood-Sims heard a knock, looked out and saw

Galloway, who claimed to be a neighbor and asked if he could use a phone. Wood-

Sims testified that Walker told Wood-Sims to open the door and allow him to use

the phone. Galloway, Mann, and Sanders then "pushed" their way into the

apartment.

      Mann and Galloway went into the bedroom where Walker was located.

Wood-Sims and Sanders stayed in the living room. Galloway testified that he went

to the dresser where he believed the money and drugs were, and Mann began


                                           2
No. 75144-1-1/3


wrestling with Walker. Galloway testified that as he continued to search for money

and drugs, Sanders came into the bedroom, and he saw Mann and Sanders hold

Walker down on the bed.1 Galloway testified that before he left the bedroom he

saw Sanders hit Walker "up to four times in her stomach." Galloway went into the

second bedroom, still searching for the money and drugs, and when he returned

to the first bedroom he saw Walker on the floor with a belt around her neck.

Galloway testified that Sanders was sitting next to her holding one end of it.

       Galloway grabbed everything he thought he could sell, and saw Sanders

take some things from the living room. Before the men left, Mann told Wood-Sims

that they had to make it look "legit," and then Mann hit her in the face with his open

hand. After the men left, Wood-Sims went into the bedroom and saw Walker sitting

on the floor with her eyes closed and head slouched. She saw a belt around

Walker's neck. Wood-Sims tried to wake up Walker, poured water on her, and

pushed on her chest. She heard Walker wheeze and ran outside to get help.

Wood-Sims found a woman outside who then came into the apartment, called the

police, and did CPR (cardiopulmonary resuscitation) on Walker.




         Sanders's testimony differed greatly from Galloway's. Sanders testified
that, on June 3, 2013, Sanders asked Mann to take him to a store, but instead
Mann drove him to an apartment in Kent. Sanders testified that he went into the
apartment thinking that someone owed Mann money, or that Mann was going to
sell someone something. Sanders testified that someone called him to the back
room and when he got there he saw a woman on the floor. Sanders stated that he
noticed a belt around the woman's neck. He stated that he never touched the belt.
On cross-examination, Sanders admitted that he previously told Detective
Brendan Wales that he agreed to help Mann get money and drugs from Walker's
apartment in exchange for $2,000.

                                             3
No. 75144-1-1/4


       When paramedics arrived, Walker had no pulse, was not breathing, and

showed a "flat line" on the cardiac monitor. Although they were able to restart her

heart with medication, Walker did not survive. The medical examiner performed

an autopsy and concluded that Walker bled to death internally, due to blunt force

trauma to her liver.

       On March 12,2014,the State charged Galloway, Wood-Sims, Sanders, and

Mann with first degree felony murder. Wood-Sims and Galloway eventually

admitted their involvement, pleaded guilty to second degree murder, and testified

for the State at Sanders's and Mann's joint trial. The jury found Sanders and Mann

guilty as charged. The trial court sentenced Mann to 493 months of confinement.

Mann appeals.

                                    DISCUSSION

       Mann makes six arguments. First, he argues that the trial court erred in

denying his motion to sever his trial from his codefendant. Second, he argues that

the State failed to present sufficient evidence to prove the predicate crime of

burglary. Third, he argues that the trial court erred in refusing to instruct the jury

on the lesser crime of second degree felony murder. Fourth, he argues that he

received ineffective assistance of counsel because counsel failed to request a

cautionary jury instruction on accomplice testimony. Fifth, he argues that repeated

references to his propensity for crime deprived him of a fair trial. Sixth, he argues

that cumulative error deprived him of a fair trial.




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No. 75144-1-1/5


   I.   Severance

        Mann contends that the trial court should have granted his motion to sever

his trial from Sanders. He argues that he and Sanders presented antagonistic and

irreconcilable defenses. And, he claims that the massive quantity of evidence and

Sanders's incriminating out-of-court statements also necessitated the trial court to

sever the trials.

        A defendant seeking severance must demonstrate that a joint trial would be

so manifestly prejudicial as to outweigh the concern for judicial economy. State v.

Sublett, 176 Wn.2d 58, 68-69, 292 P.3d 715 (2012). This court reviews a trial

court's decision on a motion to sever trials for manifest abuse of discretion. Id. at

69. On appeal, the defendant must be able to point to specific prejudice. Id. The

court infers specific prejudice from:

        "(1) antagonistic defenses conflicting to the point of being
        irreconcilable and mutually exclusive; (2) a massive and complex
        quantity of evidence making it almost impossible for the jury to
        separate evidence as it related to each defendant when determining
        each defendant's innocence or guilt; (3) a co-defendant's statement
        inculpating the moving defendant;(4)or gross disparity in the weight
        of the evidence against the defendants."

State v. Jones, 93 Wn. App. 166, 171-72, 968 P.2d 888 (1998)(quoting State v.

Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)).

   A. Irreconcilable Defenses

        Mutually antagonistic defenses alone are insufficient to compel separate

trials. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577(1991). Rather, it must

be demonstrated that the conflict is so prejudicial that defenses are irreconcilable,

and the jury will unjustifiably infer that this conflict alone demonstrates that both


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No. 75144-1-1/6


are guilty. Id. For defenses to be irreconcilable, they must be mutually exclusive

to the extent that one defense must be believed if the other defense is disbelieved.

State v. Johnson, 147 Wn. App. 276, 285, 194 P.3d 1009 (2008). The appellate

court rarely overturns a trial court's denial of a motion to sever on the basis of

mutually exclusive defenses, even when one defendant tries to blame another. Id.

And,the desire of one defendant to exculpate himself by inculpating a codefendant

is insufficient to compel separate trials. Id. at 286.

       Mann moved to sever his trial from Sanders after the State rested its case.

Sanders had already moved pretrial for severance, and the court denied the

motion. When Mann moved to sever after the State rested, Sanders had not

presented evidence or testimony to the jury.

       In his trial memo, Sanders described his defense as follows,

               At its core, Mr. Sanders' defense is three-pronged: First, he
       did not know of or intend to participate in a robbery or burglary.
       Second, he is of good, honest, law-abiding character. Third,
       codefendant Corey Mann is of violent, dishonest character and has
       a character trait of intimidating others, character traits which bear
       directly upon Mr. Sanders' acts and failure to act on the day of the
       crime and in the police interrogations which followed.

When Sanders moved to sever, counsel described his defense as follows,

      [Tjhe essential nature of Mr. Sanders' defense is that he would not
      have been where he was on the day of the crime were it not for the
      coercion of Mr. Mann, and it is Mr. Sanders' character that allows us
      or helps us argue that.



            ... Offensively, we hope to show that Mr. Mann's character is
      one of violence, intimidation, and dishonesty.




                                             6
No. 75144-1-1/7


Pretrial, Mann's position on Sanders's severance motion was "contingent on

whether or not the Court will allow any character evidence" against Mann.

       The trial court denied Sanders's motion to sever, and excluded evidence of

"Mann's reputation for violence, manipulation, or untruthfulness." Tlie trial court

also ruled, "Sanders may not refer to any prior misconduct of Mann in opening

statement and may not cross[-]examine any state witness about prior misconduct

of Mann."

       When Mann moved to sever after the State rested, the trial court stated,

       And just so that the suspense is avoided, I assure you, [Sanders's
       counsel] is going to probably attack [Mann]. I think their interests are
       in opposition. He has a different theory of the case. I think that that's
       evident.

           That in and of itself is not a reason to sever this trial. Just
       because they may be in opposition does not mean that this trial
       should be severed, and that's why this Court has denied the motions
       already on two occasions.

The trial court denied the severance motion.

       Mann contends that he and Sanders presented irreconcilable defenses.

The court's analysis on the defendant's motion to sever in Sublett is instructive.

There, codefendants Sublett and Olsen were charged with premeditated first

degree murder and, alternatively, felony murder. Sublett,176 Wn.2d at 67. Sublett

was convicted of both premeditated first degree murder and felony murder, while

Olsen was convicted solely of felony murder. Id. Sublett's defense was a general

denial of involvement in the murder. Id. at 69. He did not testify during trial. it

Olson's defense was that he was not present for the murder, and he helped move




                                              7
No. 75144-1-1/8                        I


the body after the fact only because Sublett threatened him. Id. Our Supreme

Court found that the trial court did not err in denying Sublett's motion to sever:

       While the two defenses are irreconcilable, they do not reach the level
       where the jury would unjustifiably infer from the conflict that both are
       guilty. The jury could have believed either or neither defendant,
       though it could not believe both. That is, it could have believed that
       Sublett did not participate at all and inferred that Olsen was lying. Or
       it could have believed Olsen and inferred that Sublett was lying.
       Given the jury's verdict, it did not believe either of them, and Sublett
       has not shown that this was due to the conflicting defenses rather
       than the evidence presented during trial. Nor did Sublett cite to any
       evidence admissible only as to Olsen, which prejudiced his defense.
       The trial court, therefore, did not err in denying severance.

Id. at 69-70(footnote omitted)(internal citation omitted).

       At the time the trial court denied the motion to sever, Sanders's stated

defense was that he "did not know of or did not intend to participate in a robbery

or burglary." He also claimed that "he would not have been where he was on the

day of the crime were it not for the coercion of Mr. Mann." Here, as in Sublett, the

jury could have believed either or neither defendant, but it could not have believed

both. The jury's verdict finding both Mann and Sanders guilty demonstrates that it

did not believe either defense. Mann argues that his case is distinguishable from

Sublett because evidence that would not have been admissible against Mann in a

separate trial was admitted in the joint trial. Mann asserts that had he and Sanders

been tried separately, Sanders's out-of-court statements to Detective Wales,

where he confessed that he willingly participated in the robbery in exchange for

$1,000, would not have been admissible against him. And, Mann argues further

that because of a defendant's Fifth Amendment right against self-incrimination,




                                             8
No. 75144-1-1/9


Sanders could not have been compelled to testify against Mann in a separate trial,

while his own trial or direct appeal were pending.

        But, in State v. Emery, 174 Wn.2d 741, 753-54, 278 P.3d 653 (2012), the

court held that a defendant could not show prejudice from a joint trial, in part

because he offered nothing to suggest that his codefendant's testimony would not

have been available and admissible against him if the trials had been severed.

The Emery court relied on United States v. Throckmorton,87 F.3d 1069, 1072(9th

Cir.1996). 174 Wn.2d at 754. In Throckmorton, the defendant argued that his

codefendant would not have testified against him in a separate trial because of his

right against self-incrimination. 87 F.3d at 1072. The court found no support for

this argument because the codefendant declined to assert his Fifth Amendment

right in the joint trial in which his own guilt was the question before the jury. Id.

       Likewise, here, if Sanders had been tried separately, he could have been

available to testify in Mann's separate trial. And, the record does not support

Mann's argument that Sanders would not have testified against him in a separate

trial, since he did not assert his right against self-incrimination in the joint trial.

       Our Supreme Court "has consistently held that the mere fact that evidence

admissible against one defendant would not be admissible against a codefendant

if the latter were tried alone does not necessitate severance." State v. 6N/throw,

114 Wn.2d 713, 721, 790 P.2d 154 (1990). And, in Washington cases where the

trial court instructed the jury not to consider certain evidence of one defendant,

such as a confession, against the codefendant no reversible error was found. Id.

Here, the trial court instructed the jury, "A separate crime is charged against each


                                                9
No. 75144-1-1/10


defendant. You must decide the case of each defendant separately. Your verdict

as to one defendant should not control your verdict as to the other defendant."

       Mann also argues that he suffered specific prejudice when Sanders

introduced testimony from Juan Rodriguez. Rodriguez, who was in custody with

Mann, testified that Mann told him "there was supposed to be money and drugs

there, and that during the whole thing, he ended up slamming the girl to the ground

and choking her." Rodriguez also testified that Mann described Walker as "a rich,

little, white bitch." Mann argued at trial that Sanders called Rodriguez to testify to

put Mann in as "bad light as possible." But, the State identified Rodriguez as a

potential witness before trial. Though it did not call him to testify, it could have

called Rodriguez to testify had Mann been tried separately.

       Mann cannot show that the jury unjustifiably inferred his guilt from the

conflict in defenses alone, because the direct and circumstantial evidence against

him was strong. Wood-Sims testified that she and Mann agreed to rob Walker's

apartment. Galloway also testified that, when Mann picked him up from the skate

park, Mann told him that they were going to rob the apartment. Therefore,

Sanders's out-of-court statement to Wales was cumulative of evidence already

before the jury. Mann has not shown that the jury found him guilty due to the

conflicting defenses rather than the evidence presented during trial. And, the trial

court gave the appropriate instruction, directing the jury to decide each defendant's

case separately, and jurors are presumed to follow their instructions. Emery, 174

Wn.2d at 754.




                                             10
No. 75144-1-1/11


    B. Massive and Complex Quantity of Evidence

         Mann argues next that the massive and complex quantity of evidence at

trial necessitated severance.       Mann points to the "10 days of testimony,"

"complicated cell tower data,""medical and fingerprint testimony," and "[n]early 50

exhibits" as examples of the massive and complex evidence at trial.

         This court will infer specific prejudice from "a massive and complex quantity

of evidence making it almost impossible for the jury to separate evidence as it

related to each defendant when determining each defendant's innocence or guilt."

Jones, 93 Wn. App. at 171-72. With the exception of Sanders's out-of-court

statement addressed above, Mann does not identify any evidence that would not

have been presented had the trials been severed. Mann has not shown that the

evidence was so massive or complex that it was impossible for the jury to

segregate the evidence relative to each codefendant.

         The trial court did not abuse its discretion in denying Mann's motion to

sever.

  II.    Predicate Crime of Burglary

         Mann argues next that the State failed to present sufficient evidence to

prove the predicate crime of burglary required to support the felony murder

conviction. The State presented to the jury two alternative means of committing

felony murder:(1)felony murder predicated on first degree robbery; and (2)felony

murder predicated on first degree burglary.         Mann concedes that the State

presented sufficient evidence of the predicate crime of robbery, but argues that it

did not present sufficient evidence of burglary. Citing State v. Maupin,63 Wn. App.


                                              11
No. 75144-1-1/12


887,822 P.2d 355(1992), Mann contends that the remedy is reversal and remand

for a new trial in which the jury is instructed only on felony murder with a predicate

crime of robbery.

       The Washington Constitution guarantees criminal defendants the right to a

unanimous jury verdict. WASH. CONST. art. I, § 21. In alternative means cases,

where the criminal offense can be committed in more than one way, an expression

of jury unanimity is not required provided each alternative means presented to the

jury is supported by sufficient evidence. State v. Woodlyn, 188 Wn.2d 157, 164,

392 P.3d 1062(2017). But, when there is insufficient evidence to support one of

the alternative means and the jury does not specify that it unanimously agreed on

the other alternative, the conviction cannot stand. State v. Armstrong, 188 Wn.2d

333, 343-44, 394 P.3d 373(2017).

       Sufficiency of the evidence is a question of constitutional law this court

reviews de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). The

State bears the burden of proving the elements of a crime beyond a reasonable

doubt. Id. In reviewing a sufficiency of the evidence claim, we view the evidence

in the light most favorable to the State to determine whether any rational trier of

fact could have found guilt beyond a reasonable doubt. State v. Witherspoon, 180

Wn.2d 875, 883, 329 P.3d 888 (2014). A challenge to the sufficiency of the

evidence admits the truth of the State's evidence and all reasonable inferences

that can be draw from such evidence. See id. We defer to the trier of fact on

issues of witness credibility. Id.




                                            12
No. 75144-1-1/13


       To support the felony murder conviction based on burglary in the first

degree, the State had to prove that Mann or an accomplice entered or remained

unlawfully in a building with intent to commit a crime against a person or property

therein, and in entering or while in the building, Mann or an accomplice assaulted

any person. RCW 9A.52.020(1). A person "enters or remains unlawfully" when

he or she is not then "licensed, invited, or otherwise privileged to so enter or

remain." RCW 9A.52.010(2).

       Mann contends insufficient evidence supports finding beyond a reasonable

doubt that he or an accomplice entered or remained unlawfully in Walker's

apartment, an essential element of burglary. Mann claims that neither he nor the

accomplices entered or remained unlawfully in the apartment because Walker

invited Wood-Sims to her apartment, allowed Wood-Sims to answer the door, and

told her to let the men inside.

       Only the person who resides in or otherwise has authority over the property

may grant license to enter the premises. State v. Grimes, 92 Wn. App. 973, 978,

966 P.2d 394 (1998). The license to enter or remain may be limited as to time,

place, or purpose, and be revoked. State v. Lambert, 199 Wn. App. 51, 73, 395

P.3d 1080 (2017), review denied, 189 Wn.2d 1017, 404 P.3d 499 (2017), cert.

denied, 138 S. Ct. 1571 (2018); see State v. Collins, 110 Wn.2d 253, 261, 751

P.2d 837 (1988). The trier of fact may infer "a limitation on or revocation of the

privilege to be on the premises" from the circumstances of the case. Collins, 110

Wn.2d at 261.




                                           13
No. 75144-1-1/14


        In Collins, the victims let the defendant, a stranger, into their home to use

the telephone and the defendant raped the victims. Id. at 254-55. The court

concluded the license to enter was limited to a specific area and purpose, to use

the telephone. Id. at 261. When the defendant exceeded the limitation to place

and purpose, his license to remain was implicitly revoked. Id.

        Here, there is evidence that Walker told Wood-Sims to answer the door to

Galloway. After there was a knock on Walker's apartment door, Wood-Sims

testified,

       I only seen [sic] one person, and that was Galloway, and he asked if
       he could use the phone, because something happened with his car;
       he was her neighbor.

              And then Tasha was in the room, because she thought that it
       was Tyrrell[ Walker]. And we had cocaine out, and Tyrrell didn't
       know that she was doing drugs; so she kind of panicked. So she
       said, go get the door, and she shut the bedroom door.

             And then I asked her, can I open the door? I told her that it
       was her neighbor, and she said, go ahead, let them use the phone.

Wood-Sims testified that she did not recognize Galloway at the time and did not

know that he was part of Mann's group. But, she also testified that when Galloway

knocked on the door she knew that the men "were going to take Tasha's money

and her pills." And, Wood-Sims testified that she lied to Walker when she told her

that somebody was there to use the phone, to accomplish the plan of robbing

Walker. Further, Sanders testified on cross-examination that when he and the

other men went to Walker's door, he heard a woman on the other side of the door

say "don't let them in." Viewed in the light most favorable to the State, this is

sufficient evidence to establish unlawful entry.



                                            14
No. 75144-1-1/15


         Moreover, under Collins, the trier of fact could infer that Galloway and his

accomplices had an invitation or license only to a specific area of the home and

for the single purpose, to use the phone. As in Collins, Walker purportedly

permitted Wood-Sims to let Galloway in for that specific purpose. Once Galloway

and the other men went into the other rooms of Walker's apartment and held

Walker down as they looked for drugs and money, any privilege Galloway and the

other men had up to that time was revoked. See Collins, 110 Wn.2d at 261.

         We find that the evidence was sufficient for the jury to determine that Mann

and his accomplices both entered and remained unlawfully in Walker's apartment

on June 3, 2013. Thus, the State presented sufficient evidence to prove the

predicate crime of burglary required to support the first degree felony murder

conviction.

  III.   Inferior Degree Jury Instruction

         Next, Mann argues that the trial court erroneously refused to instruct the

jury on the inferior crime of second degree felony murder.

         A crime is an inferior degree of another when

         (1) the statutes for both the charged offense and the proposed
         inferior degree offense "proscribe but one offense"; (2) the
         information charges an offense that is divided into degrees, and the
         proposed offense is an inferior degree of the charged offense; and
         (3) there is evidence that the defendant committed only the inferior
         offense.
State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)(quoting State v.

Foster, 91 Wn.2d 466,472,589 P.2d 789(1979 and State v. Daniels, 56 Wn. App.

646, 651, 784 P.2d 579 (1990)).



                                             15
No. 75144-1-1/16


       This court reviews a trial court's decision to give a jury instruction de novo

if based upon a matter of law, or for abuse of discretion if based upon a matter of

fact. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517(2017).

Thus, where the parties' disagreement about an instruction is based on a factual

dispute, it is reviewed for an abuse of discretion. Id. To determine whether to give

an instruction, the trial judge must merely decide whether the record contains the

kind of facts to which the doctrine applies. Id.

       Mann requested the court to instruct the jury on second degree felony

murder predicated on either second degree theft or assault. The trial court

declined to give the inferior offense instruction based on the test established in

State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). Mann asserts the trial

court should have used the test in Peterson instead and should have found he

satisfied that test for the instruction. Our Supreme Court has pointed out that the

Workman test to determine if a crime is a lesser included offense differs from the

test to determine if a defendant is entitled to an inferior degree offense instruction.

State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998). The difference is in

the legal prongs of the tests. Compare Workman, 90 Wn.2d at 447-48 with

Peterson, 133 Wn.2d at 891. The difference is immaterial in this case, though,

because both the Workman test for lesser degree instruction and the Peterson test

for an inferior degree offense instruction require the same factual prong: that the

evidence in the case supports that only the lesser or inferior degree offense was




                                             16
No. 75144-1-1/17


committed.2 See State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015);

Peterson, 133 Wn.2d at 891.

       Here, the evidence at trial does not support that Mann committed only

second degree felony murder predicated on second degree theft. Wood-Sims

testified that Walker purportedly permitted Wood-Sims to let Galloway in so that

he could use a phone. Once Galloway, Mann, and Sanders went into the other

rooms of Walker's apartment and held Walker down as they looked for drugs and

money, any privilege Galloway and the other men had up to that time was revoked.

See Collins, 110 Wn.2d at 261. As concluded above,there was sufficient evidence

that Mann or his accomplices entered or remained unlawfully in Walker's

apartment, a required element for burglary. There was also ample evidence that

the men took property from Walker's apartment. Therefore, the evidence does not

support that Mann and his accomplices committed only the lesser offense of theft.

The trial court reasonably determined that there was no factual support for an

instruction on second degree felony murder based on theft.

       After the State responded to Mann's request for a second degree felony

murder instruction predicated on theft, Mann amended the instruction request to

include the predicate felony of assault. Under RCW 9A.32.050(1)(b), a person

commits second degree felony murder if he causes a person's death in the course

of committing a felony not enumerated under the statute for first degree felony

murder. The felonies under first degree murder include robbery in the first or

      2 Because  Mann's requested instruction fails the factual prong of either test,
we need not reach the parties arguments over whether Mann satisfied the legal
prong of the Peterson test.

                                            17
 No. 75144-1-1/18


second degree and burglary in the first degree. RCW 9A.32.030(c). Since there

was substantial evidence that Mann and his accomplices committed robbery or

burglary, the trial court did not err in finding that there was also not a factual basis

for only the inferior offense of second degree felony murder based on assault.

        Therefore, the trial court did not abuse its discretion in declining to instruct

the jury on the inferior offense of second degree felony murder based on theft or

assault.

  IV.   Ineffective Assistance of Counsel

        Mann argues that he was denied effective assistance of counsel because

his counsel failed to request a cautionary instruction on accomplice testimony.

        The Sixth Amendment right to counsel includes the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed.2d 674 (1984). In order to prevail on a claim of ineffective

assistance of counsel, the defendant must demonstrate(1) deficient performance,

that his attorney's representation fell below the standard of reasonableness, and

(2) resulting prejudice, that but for the deficient performance, the result would have

been different. State v. Hassan, 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009).

If a defendant fails to establish either prong, we need not inquire further. Id. at

217.

        To establish deficient performance, the defendant has the heavy burden of

showing that his attorney made errors so serious that counsel was not functioning

as the counsel guaranteed the defendant by the Sixth Amendment. Id. This court

approaches an ineffective assistance of counsel argument with a strong


                                              18
No. 75144-1-1/19


presumption that counsel's representation was effective. State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant has the burden to show

that based on the record, there are no legitimate strategic or tactical reasons for

the challenged conduct.      Hassan, 151 Wn. App. at 217. And, to establish

ineffective assistance based on counsel's failure to request a jury instruction, the

defendant must show that he was entitled to the instruction. State v. Olson, 182

Wn. App. 362, 373, 329 P.3d 121 (2014).

       It is. always the better practice for a trial court to give the cautionary

instruction whenever accomplice testimony is introduced. State v. Harris, 102

Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v.

McKinsey, 116 Wn.2d 911, 914, 810 P.2d 907(1991). Atrial court's failure to give

this instruction is reversible error where the State relies solely on accomplice

testimony. Id. But, it is not reversible error "[i]f the accomplice testimony was

substantially corroborated    by testimonial, documentary or circumstantial

evidence." Id. Evidence sufficiently corroborates accomplice testimony if it fairly

tends to connect the accused with the commission of the crime charged. State v.

Calhoun, 13 Wn. App. 644,648, 536 P.2d 668(1975). It is not necessary that the

accomplice be corroborated in every part of his testimony. Id.

       The State presented an abundance of accomplice testimony at Mann's trial.

Mann, Sanders, Galloway, and Wood-Sims were all charged with first degree

murder in the same charging document. Galloway and Wood-Sims ultimately

pleaded guilty to second degree murder and testified for the State against Mann

and Sanders.


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        But, the State presented other evidence that corroborated their testimony,

such as cell phone records, cell tower records showing phone movement, medical

testimony, fingerprint data, and an autopsy report. The State presented evidence

that Galloway's fingerprints were found inside Walker's apartment. The State used

cell phone records to show that the cell phone Mann was using sent a signal to the

cell tower close to Walker's apartment in the hour before Walker was killed.

Detective Wales further corroborated testimony from Wood-Sims and Galloway.

Wales testified that he realized from Mann's phone records that Wood-Sims and

Mann had communicated extensively, and this led him to confront Wood-Sims with

the phone records. McGee testified about the items missing from his and Walker's

apartment after the robbery. The State also presented evidence that Jessica

Ozuna Mann, Mann's wife, pawned a gold watch stolen from McGee and Walker's

apartment.

       This is not an exhaustive summary of the corroborating evidence in this

case, but it shows that the State sufficiently corroborated the accomplice testimony

to fairly connect Mann with the commission of the crime charged. Thus, the trial

court's failure to instruct the jury on accomplice testimony is not reversible error,

and Mann was not prejudiced by his counsel's failure to request the instruction.

Mann has not shown that he received ineffective assistance of counsel.

  V. References to Mann's Criminal History and Motions for Mistrial

       Next, Mann contends that the trial court abused its discretion when it denied

his motion(s)for mistrial after repeated references to his criminal history in violation

of pretrial rulings. .


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        Following the trial court's pretrial motions, the State instructed its witnesses

not to talk about Mann's character or that Mann had ever been in jail or prison.

But, Kamela Wood,Wood-Sims mother, mentioned in her testimony that Mann had

been "locked up" and at one point that he had gotten "out of prison." During

Sanders's cross-examination he testified, about Mann,"And I know he wasn't just

going to just let me jump out [of] the car and walk away. He would probably come

look for me, and gun me down or something. So, with that type of individual, that's

what I felt like." The trial court promptly instructed the jury to disregard both Wood's

and Sanders's improper statements.

       Mann moved for a mistrial after the State's opening statements in which

counsel stated that Mann had been jailed, and again moved for a mistrial after

Wood's reference to Mann's time in prison. The court denied both motions. The

court gave the defense-proposed limiting instruction, "You heard evidence that

defendant Corey Mann was in custody in 2013. You are not to consider the fact

that the defendant Corey Mann was in custody as evidence of guilty in this matter."

Mann argues that the cumulative effect of repeated references to his propensity

for crime deprived him of a fair trial.

       A trial court's denial of a motion for a mistrial is reviewed for abuse of

discretion. State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973(2010). A denial

of a motion for mistrial should be overturned only when there is a substantial

likelihood that the prejudice affected the verdict. Id. Thus, when a trial irregularity

occurs, the court must decide its prejudicial effect. Id. In determining the effect of

an irregularity, the court examines (1) its seriousness; (2) whether it involved


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cumulative evidence; and (3) whether the trial court properly instructed the jury to

disregard it. Id. A trial court has wide discretion to cure trial irregularities resulting

from improper witness statements. Id. In the context of a given case it may be

that improper evidence did not affect the outcome of the trial, and in such situations

a trial court may deny a motion for a mistrial. Id. Although violations of pretrial

orders are generally viewed as serious irregularities, the seriousness is diminished

where the improper testimony is not intentionally elicited and is not provided by

"professional" witnesses like law enforcement officers. See id. at 178.

       Here, the witnesses were not professionals, and their remarks were not

responsive to the prosecutor's questions. While the remarks at issue violated the

trial court's pretrial order, the jury was instructed to disregard both statements.

Given the curative instructions, and in the context of the trial as a whole and all the

evidence, we conclude that the trial court did not abuse its discretion in denying

Mann's motions for mistrial.

 VI.   Cumulative Error

       Finally, Mann argues that the cumulative effect of errors at his trial deprived

him of a fair trial and that this court should reverse and remand.

       The cumulative error doctrine allows an appellate court to reverse a

conviction based on the combined effect of a number of errors, even if each error

was individually harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646

(2006). "The doctrine does not apply where the errors are few and have little or

no effect on the outcome of the trial." Id.




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      We found above that either the errors did not occur, or that Mann has not

demonstrated prejudice from any of the errors he alleges. Therefore, we reject

Mann's cumulative error claim.

      We affirm.




WE CONCUR:




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