                                                                           FILED
                                                                        JULY 28, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                            )
                                                )       No. 36539-5-III
                     Respondent,                )
                                                )
       v.                                       )
                                                )
ANTONIO ABONZA,                                 )       UNPUBLISHED OPINION
                                                )
                     Appellant.                 )

       KORSMO, J. — Antonio Abonza appeals from a conviction for third degree rape,

arguing that the court erred by denying his request to sever charges. We affirm the

conviction and remand to strike the criminal filing fee from the judgment.

                                          FACTS

       The relevant facts are largely procedural, so only a brief description of the two

incidents is necessary. The rape occurred April 14, 2018, when Abonza had sexual

relations with a sleeping woman in her apartment and continued to force himself on her

after she awoke and told him to stop. He also was charged with first degree criminal

trespass at the same location 18 days later for entering the apartment in the middle of the

night. The two matters were joined for trial.
No. 36539-5-III
State v. Abonza


         Mr. Abonza moved to sever the counts prior to trial, arguing that it was unduly

prejudicial to try them together. At the conclusion of the pretrial hearing, the court

denied the motion. On the morning of the first day of the jury trial, the defense renewed

the motion to sever. The court again denied the request.1

         Mr. Abonza then pleaded guilty to the criminal trespass charge. The State sought

clarification of the admissibility of the trespass incident under ER 404(b). The trial court

ruled that the evidence was admissible for limited purposes.2 The matter then proceeded

to jury trial. The victim primarily testified about the rape incident and only briefly about

the subsequent trespass. The victim’s two roommates testified concerning the trespass.

Mr. Abonza testified in his own behalf that the couple engaged in consensual sexual

relations until she stated that it was uncomfortable and he stopped. He also said that he

came to the house on May 2 because he needed to talk to the victim after learning she

was upset about their previous encounter.

         The jury convicted Mr. Abonza of third degree rape. After vacating the original

sentence, the court imposed concurrent 12 month terms on the two counts at a

resentencing. Mr. Abonza timely appealed to this court. A panel considered his appeal

without conducting argument.



         1
             The court entered written findings concerning the severance hearing following
trial.
         2
             The court also gave a written limiting instruction to the jury.

                                                  2
No. 36539-5-III
State v. Abonza


                                        ANALYSIS

       This appeal challenges the severance rulings and the imposition of the $200

criminal filing fee at sentencing. The State concedes error on the filing fee and we accept

the concession. The trial court may not impose discretionary LFOs on indigent

defendants. State v. Ramirez, 191 Wn.2d 732, 750, 426 P.3d 714 (2018). Accordingly,

we remand for the court to strike the filing fee.

       The severance issue is before us in a strange posture. Mr. Abonza preserved the

severance issue by renewing it at the beginning of trial. CrR 4.4(a)(2).3 However, Mr.

Abonza created a de facto severance by pleading guilty to the trespass charge. Typically,

we review a decision whether to sever charges for abuse of discretion. State v.

Kalakosky, 121 Wn.2d 525, 536, 852 P.2d 1064 (1993). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       It is the defendant’s burden to establish abuse of discretion by showing that “a trial

involving both counts would be so manifestly prejudicial as to outweigh the concern for

judicial economy.” State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). Factors

to be considered when analyzing a motion to sever include (1) whether the defendant was



       3
        “If a defendant’s pretrial motion for severance was overruled he may renew the
motion on the same ground before or at the close of all the evidence. Severance is
waived by failure to renew the motion.” CrR4.4(a)(2).

                                              3
No. 36539-5-III
State v. Abonza


confounded in presenting separate defenses, (2) whether the jury might infer a criminal

disposition from the two offenses, and (3) whether the jury might cumulate evidence to

find guilt where it would otherwise not. Id. The remedy for improper joinder of offenses

is reversal for a new separate trial with the offenses severed. E.g., State v. Bluford, 188

Wn.2d 298, 316, 393 P.3d 1219 (2017).

       It is the remedy issue that is the sticking point in this case. Assuming that Mr.

Abonza showed that the court erred by denying his motion, the remedy would be a retrial

of the rape charge without the trespass charge. But he already received that remedy. The

two charges were not tried together due to his guilty plea on the gross misdemeanor

offense. He already has received the remedy he seeks in this appeal.

       In actuality, his challenge should be directed to the evidence concerning the

trespassing incident used at the rape trial. The prosecutor properly noted that the

evidence presented an issue governed by ER 404(b) and obtained a pre-trial ruling

admitting the evidence. The defense does not assign error to that ruling, nor directly

challenge it on appeal except as a component of the severance challenge. Instead, he

treats an evidentiary issue as if it were a severance problem.

       In light of the fact that the two charges were not tried together, Mr. Abonza cannot

show that he was prejudiced by the court’s severance rulings. Having already obtained

the remedy he would have obtained if the court had agreed with his severance motions,

he simply was not harmed.

                                              4
No. 36539-5-III
State v. Abonza


      The conviction is affirmed and the case remanded to strike the filing fee.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                            _________________________________
                                                    Korsmo, J.

WE CONCUR:



_________________________________
      Pennell, C.J.



_________________________________
      Siddoway, J.




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