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                                                                                                 19
                                                                                                             ENJ




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,


                                       Respondent,        I                    No. 42803 -2 -II


        V.                                                I          PART PUBLISHED OPINION


DENNIS LAWRENCE McCARTHY,


                                       Appellant.




        MAXA, J. —     Dennis McCarthy appeals his convictions and sentence for second degree

assault and first degree assault against his girl friend. McCarthy challenges the trial court' s

decision to provide the jury with a tape measure and masking tape during deliberations without

consulting him or counsel, arguing that this conduct violated his right to a public trial, right to be

present and right to counsel. We hold that ( 1) McCarthy' s public trial right was not implicated

because the trial court' s response to the jury request was not a proceeding historically open to the

public, and ( 2) McCarthy' s right to be present and right to counsel were not violated because the

provision of the materials was a ministerial matter and the tape measure and masking tape were

not evidence.




        McCarthy also argues that the trial court improperly decided whether the two assault

convictions were the same criminal conduct rather than submitting the issue to the jury. We hold

that the trial   court and not   the   jury   properly decided   whether   McCarthy' s   two   convictions
No. 42803 -2 -II



constituted the same criminal conduct. We address additional issues in the unpublished portion


of this opinion. We affirm McCarthy' s convictions and sentence.

                                                 FACTS


       McCarthy' s assault charges were tried to a jury. While the jury was deliberating, it asked,

the trial court for a tape measure and masking tape. The trial court had the bailiff deliver those

items to the jury without first consulting counsel. Before the jury returned with its verdict, the

trial court informed the parties on the record that it had provided those items to the jury and

asked if there were any objections. McCarthy expressed concern that the trial court did not

consult the parties before providing the supplies to the jury, but did not state a formal objection

or move for a mistrial.


        The jury convicted McCarthy on both assault charges. At sentencing, the trial court

concluded the first and second degree assault convictions were not the same criminal conduct,


and counted each conviction as one point for offender score purposes. McCarthy appeals.

                                             ANALYSIS


A.      TRIAL COURT' S RESPONSE TO JURY REQUEST FOR MATERIALS


        McCarthy argues that the trial court' s providing the jury with a tape measure and

masking tape during deliberations outside his, his counsel' s and the public' s presence violated

his rights to a public trial, to be present at trial, and assistance of counsel. We disagree because

responding to jury requests for materials does not implicate the right to a public trial and the trial

court did not violate McCarthy' s right to be present or right to counsel because of the ministerial

nature of the response to the jury' s request.




                                                   2
No. 42803 -2 -II



           1.          Public Trial Right


           The Sixth Amendment to the United States Constitution and article I, section 22 of the


Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise,


176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings


must be held in open court unless application of the five- factor test set forth in State v. Bone-


Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995)                          supports closure of           the   courtroom.,   We


review public           trial   claims      de   novo.    Wise, 176 Wn.2d at 9.


           The threshold determination when addressing an alleged violation of the public trial right

is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wn.2d 58, 71,

292 P. 3d 715 ( 2012). "[                  N] ot every interaction between the court, counsel, and defendants will

implicate the           right   to   a public    trial,   or constitute a closure     if closed to the       public."    Sublett, 176


Wn.2d      at    71.    In Sublett, our Supreme Court adopted a two -
                                                                    part " experience and logic" test to

address        this issue: (     1) whether the place and process historically have been open to the press and

general public ( experience prong) and ( 2) whether public access plays a significant positive role

in the   functioning            of   the   particular process    in   question.     176 Wn.2d        at   72 -73.    Only if both
                                                                                                                 2
questions are answered                 in the    affirmative    is the   public   trial   right   implicated.        Sublett, 176


Wn.2d at 73.




 McCarthy did not object when informed that the materials had been provided to the jury.
However, " a
           defendant does not waive his right to a public trial by failing to object to a closure
at      Wise, 176 Wn.2d at 15. Accordingly, we address this issue despite the absence of
     trial."

McCarthy' s objection below.

2 Our Supreme Court has held that a personal restraint petitioner has the burden of satisfying the
experience and logic test. In re Pers. Restraint of Yates, 177 Wn.2d 1, 29, 296 P. 3d 872 ( 2013).
It remains unclear whether the same rule applies in a direct appeal.
                                                                         3
No. 42803 -2 -II



            We hold that the experience prong shows that the public trial right does not attach to the

trial court' s response to a jury' s request for a tape measure and masking tape. McCarthy cites no

authority indicating that a trial court' s response to a jury request for these types of additional.

materials historically has been open to the public. Conversely, the only case addressing a

somewhat similar jury request held that the trial court' s response did not need to be in open

court.     In State     v.   Koss, 158 Wn.    App.    8, 17 -18, 241 P. 3d 415 ( 2010), review granted, 176 Wn.2d


1030 ( 2013), Division Three of this court held that the trial court' s in- chambers response to a


deliberating jury' s request for an audio player to listen to evidence did not violate the

defendant' s public trial right.


            Further, our Supreme Court in Sublett held that even responding to " substantive" jury

questions does not implicate a public trial right. In Sublett, the trial court responded in chambers


to   a   jury   question     regarding   one of the   instructions,   with   only   counsel present.   176 Wn.2d at 67.


The question and response were then put in the record. Sublett, 176 Wn.2d at 67. The court


determined that a trial court' s discussion with the parties about jury questions and any response

was not historically a proceeding to which the public trial right attached. Sublett, 176 Wn.2d at

77. In reaching this conclusion, the court noted that the only authority it could find governing

jury     questions was        CrR 6. 15( f)(1),   which does not require that the trial court discuss questions


and appropriate responses             in   open court.'    Sublett, 176 Wn.2d at 77.


            Here, a request for a tape measure and masking tape does not even rise to the level of a

question about an instruction. If there is no public trial right for substantive jury questions about


     CrR 6. 15( f)(1) establishes the procedure for a trial court to use when a deliberating jury has a
question about          the " instructions    or evidence,"    and states that the trial court must respond to all
questions "       in   open court or     in writing." This language indicates that a trial court has the option
of responding          orally to   substantive    jury   questions   in   open court or   privately in writing.
No. 42803 -2 -II



instructions or evidence, there should be no expectation that such a right exists for this non-


substantive request. We rely on Sublett and hold that a trial court' s response to a jury request for

a   tape    measure and       masking tape is       not a   proceeding to   which     the   public   trial   right attaches.   176


Wn.2d at 77. Accordingly, McCarthy has failed to satisfy the experience prong of the Sublett
        4
test.


            2.      Defendant' s Right To Be Present


              McCarthy argues that the trial court violated his constitutional right to be present at trial

when it provided the jury with a tape measure and masking tape in his absence. We disagree

because responding to a jury request for non -
                                             evidentiary materials is not a critical stage of trial.

                    a.      Parameters of Right


             A criminal defendant has a fundamental right to be present at all critical stages of a


trial."     State   v.    Irby,   170 Wn.2d 874, 880, 246 P. 3d 796 ( 2011).            This right derives from the Sixth


and     Fourteenth Amendments to the federal                  constitution.
                                                                              Irby,   170 Wn.2d       at     880 -81. Although


the right to be present originated in the confrontation clause of the Sixth Amendment, the


Fourteenth Amendment due process clause applies where defendants are not actually confronting
                                                    5
witnesses or evidence against               them.       State v. Jones, 175 Wn App. 87, 105, 303 P. 3d 1084




4
    Because the experience prong is not satisfied, we need not address the logic prong. Sublett, 176
Wn.2d at 73.

5
    The right to be present also is guaranteed by article I, section 22 of the Washington State
Constitution,        which provides, "        In criminal prosecutions the accused shall have the right to appear
and     defend in         by
                         person, or     Our Supreme Court has recognized that the state
                                           counsel."

constitutional right to appear and defend arguably is broader than the federal due process right.
Irby, 170 Wn.2d at 885 n.6. However, McCarthy does not argue that his rights were violated
under article        I,   section   22,   so we need not address     this issue.
No. 42803 -2 -II



 2013), petition for review filed, No. 89321 -7 ( Wash. Sept. 26, 2013).


          In general, a stage of trial is " critical" if it presents a possibility of prejudice to the

defendant. State           v.   Hawkins, 164 Wn.              App.   705, 715, 265 P. 3d 185 ( 2011), review denied, 173


Wn.2d 1025 ( 2012).               More specifically, our Supreme Court in Irby quoted extensively from

Snyder    v.   Massachusetts, 291 U. S. 97, 105 -06, 54 S. Ct. 330, 78 L. Ed. 674 ( 1934), overruled in


part on other grounds sub nom., Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653

 1964),      in adopting guidelines for analyzing the federal due process right to be present claim.

170 Wn.2d        at   881.      Initially, " the      due    process right     to be   present   is   not absolute."   Irby, 170

Wn.2d     at   881. " `[        T] he presence of a defendant is a condition of due process to the extent that a

fair   and   just   hearing would          be thwarted         by his   absence.' "     Irby, 170 Wn.2d at 881 ( quoting

Snyder, 291 U. S.          at    107 -08).     Under this standard, a defendant has the right to be present at a


proceeding only            when     there    is   a " `   reasonably    substantial' "    relationship between his /her

presence and          the " ` opportunity to defend' "               against a charge. Irby, 170 Wn.2d at 881 ( quoting

Snyder, 291 U. S.          at    105 -106).       Conversely, a defendant does not have the right to be present if

    her
his /     presence " ` would              be   useless, or     the   benefit but   a shadow.' "         Irby, 170 Wn.2d at 881

 quoting Snyder, 291 U.S. at 106 -07).

                    b.     Particular Proceedings


             Several Washington cases have addressed what constitutes a critical stage of a trial that


would     implicate the defendant' s                 right   to be   present. "   The core of the constitutional right to be


present      is the   right     to be   present when evidence             is   being presented." In re Pers. Restraint of

Lord, 123 Wn.2d 296, 306, 868 P. 2d 835 ( 1994).                               Accordingly, it appears that any proceeding

where the trial court is dealing with evidence is a critical stage. This includes a proceeding

involving " a resolution             of   disputed facts." Lord, 123 Wn.2d at 306. In addition, the law is clear


                                                                          M
No. 42803 -2 -II



that a defendant has a right to be present during all aspects of the jury selection process, Irby,

170 Wn.2d at 883 -84, and at the return of the verdict. State v. Rice, 110 Wn.2d 577, 617, 757

P. 2d 889 ( 1988).


           On the other hand, a defendant has no right to be present at proceedings involving

     legal' "   or " ` ministerial' "     matters. Irby, 170 Wn.2d at 881 -82 ( quoting In re Pers. Restraint

of Pirtle, 136 Wn.2d 467, 484,             965   P. 2d 593 ( 1998)).    The defendant' s presence is not required


at in- chambers or bench conferences between the trial court and counsel on legal matters ( as long

as   they do    not    involve the     resolution of   disputed facts), Lord, 123 Wn.2d at 306; or motions for


continuance.          In   re   Pers. Restraint of Benn, 134 Wn.2d 868, 920, 952 P. 2d 116 ( 1998).              Further,


in Jones, we held that the random drawing of names to determine an alternate juror is not a

critical stage of trial implicating the defendant' s due process right or a proceeding affecting the

defendant'      s substantial rights      implicating    the   state constitutional right   to be   present.   175 Wn.


App. at 105 -07.

                  c.       Response to Jury Request

           The issue here is whether the trial court' s response to a jury' s request for a tape measure

and masking tape constituted a critical stage of trial. We are guided by State v. Jasper, where

Division One of this court addressed the trial court' s response to two jury questions asking for

clarification of        the law in the defendant'      s absence.     158 Wn. App. 518, 538 -39, 245 P. 3d 228

 2010), aff'd, 174 Wn.2d 96, 271 P. 3d 876 ( 2012). The court rejected the defendant' s right to be


present claim,         stating, "   Because the jury' s questions did not raise any issues involving disputed

facts, the court' s consideration of and response to the jury' s inquiries did not constitute a critical

stage of the proceedings."              Jasper, 158 Wn. App. at 539.



                                                                  7
No. 42803 -2 -II



          On the other hand, Division Three of this court indicated that the discussion of jury

inquiries (in that case, one involving trial testimony and another requesting a compact disc

player)   is. a   critical stage of   trial,   and   broadly   stated   that "[ c] ommunications between the judge


and   jury   without   the defendant'        s presence are error."      Koss, 158 Wn.       App.   at   18. The court in


Koss    cited   to State   v.   Caliguri, 99 Wn.2d 501, 508 -09, 664 P. 2d 466 ( 1983), which held that it


was error for the trial court to replay admitted tapes of recorded telephone calls for the jury

without      the defendant      present.     158 Wn. App. at 18 -19. Our Supreme Court in Caliguri stated,

 It is settled in this state that there should be no communication between the court and the jury in

the   absence of     defendant."      99 Wn.2d at 508.


          We find Caliguri distinguishable. That case involved a " substantive" communication

between the trial       court and    jury — trial court replayed critical trial evidence for the jury. Here,
                                           the

the interaction between the           jury     and   the judge   was administrative or " ministerial."        Further, here


there   was no actual " communication"                from the trial    court   to the   jury — trial court simply
                                                                                               the

provided the requested materials. We do not read Caliguri as prohibiting non -
                                                                             substantive

contact between the trial court and the jury without the defendant present. And to the extent

Koss holds that any         communication —even             involving    ministerial matters —      between the trial court


and the jury implicate the right to be present, we disagree and decline to follow such a broad

ruling.


          Here, the jury' s request for a tape measure and masking tape did not involve a substantive

issue of law or fact, and did not raise any issues involving disputed facts. It involved simple

tools the jury requested for some unstated and unknown purpose, and the trial court handled the

request in its administrative capacity. As a result, we hold that the trial court' s response to the



                                                                   N.
No. 42803 -2 -II


request for materials was a ministerial matter that does not invoke the defendant' s right to be


present. Irby, 170 Wn.2d at 881 -82.

          Nevertheless, McCarthy argues that he had a right to be present because the trial court

 effectively presented the jury with additional evidence" when he provided a tape measure and

masking tape. Br. of Appellant at 20. We disagree. These materials cannot be classified as

evidence. Nothing in the record suggests that a tape measure or masking tape injected new facts

regarding this. case. Instead, they were tools to assist the jury in understanding or evaluating the

evidence presented at trial, much like a calculator, or even a pen and paper. Responding to a jury
                                                                                                                                6
request      for    a   tape   measure and    masking tape did        not provide      the   jury   with additional evidence.




             We hold that the trial court' s response to the jury' s request for a tape measure and

masking tape does not constitute a critical stage of the trial requiring McCarthy' s presence.

Therefore, the trial court' s action did not violate McCarthy' s right to be present.

             3.         Defendant' s Right to Counsel


             McCarthy argues that the trial court' s responding to the jury' s request for a tape measure

and masking tape without notifying his attorney violated his constitutional right to counsel. We

disagree.


             Under the Sixth Amendment to the United States Constitution and article I, section 22 of


the Washington State Constitution, " a criminal defendant is entitled to the assistance of counsel


at critical stages          in the litigation." State v. Heddrick, 166 Wn.2d 898, 909 -10, 215 P. 3d 201


    2009).        A " critical   stage"   in the   right   to   counsel context   is   when" `      a defendant' s rights maybe


lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is


6
 McCarthy presumes that these materials allowed the jury to perform experiments relating to the
dimensions of the window and the distance his girl friend fell. But this is nothing more than
speculation. The jury did not state why they wanted them.
                                                                      9
No. 42803 -2 -II



otherwise   substantially   affected.' "   Heddrick, 166 Wn.2d at 910 ( quoting State v. Agtuca, 12

Wn. 'App. 402, 404, 529 P. 2d 1159 ( 1974)).

        We held above that the trial court' s response to a jury' s request for a tape measure and

masking tape does not constitute a critical stage of trial for purposes of the defendant' s

constitutional right to be present. Because the standard for the right to assistance of counsel is

almost identical to the right to be present standard, we apply our " right to be present" analysis

and holding to the right to assistance of counsel. We hold that a trial court' s response to a jury

request for a tape measure and masking tape is not a critical stage of trial requiring assistance of

counsel.




        However, we must address Division Three' s statement that " the discussion of a jury

inquiry is a critical stage of the trial at which the defendant has a right to meaningful

representation   by   counsel."
                                  Koss,' l58 Wn. App. at 18 ( citing Rogers v. United States, 422 U.S.

35, 39, 95 S. Ct. 2091, 45 L. Ed. 2d 1 ( 1975)).      As noted above, we make a distinction between

substantive and administrative
                                    jury inquiries.   In Rogers —upon which the court in Koss relied —


the trial judge without defendant or counsel present told the jury that it could enter a guilty

verdict with a recommendation for extreme mercy. 422 U. S. at 36 -37. This communication was

substantive and very significant. In contrast, the contact here between the jury and the trial court

did not involve a substantive matter. As discussed above, we disagree that responding to a jury' s

inquiry about a " ministerial" matter is a critical stage of the trial. Further, here there was no

actual discussion or communication between the trial court and jury. The trial court' s bailiff




                                                       10
No. 42803 -2 -II


                                                        7
simply       provided   the   requested materials.




             We hold that the trial court' s responding to the jury' s request for a tape measure and

masking tape without notifying defense counsel did not violate McCarthy' s constitutional right

to counsel.


B.           SENTENCING: SAME CRIMINAL CONDUCT


             Crimes constitute the " same criminal conduct" for sentencing purposes when they

 require the same criminal intent, are committed at the same time and place, and involve the

same victim."        RCW 9. 94A. 589( 1)(         a).   McCarthy argues that the trial court violated his

constitutional right to a jury trial during sentencing by deciding the same criminal conduct issue

itself rather than submitting the issue to a jury. We disagree.

             McCarthy relies on the rule set forth in Apprendi v. New .jersey, in which the United

States Supreme Court held that any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable

doubt. 530 U. S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000). However, because the


    same criminal conduct" rule is an exception to the rule that all convictions count separately for

purposes of computing the offender score, a finding of same criminal conduct can operate only to

decrease the offender score and the otherwise applicable sentencing range. RCW

9. 94A. 525( 5)(    a), ( a)(   i);   In re Pers. Restraint ofMarkel, 154 Wn.2d 262, 274, 111 P. 3d 249

    2005).    Therefore, there is no Apprendi violation where the trial court addresses the same




7
    The   court   in Koss     also cited    to CrR 6. 15( f)(App. at 18. CrR 6. 15( f)( provides
                                                             1).    158 Wn.            1)
that the trial court must notify the parties only when the jury asks a question about " the
instructions               Here, the jury' s inquiry involved neither, and therefore CrR 6. 15( f)(
                  or evidence."                                                                      1)
does not apply. It may be a better practice for the trial court to notify the parties of any contact
with the jury, even regarding " ministerial" matters. But as discussed above, there is no
constitutional right to such notice and CrR 6. 15( f)(1) does not require it.
                                                                   11
No. 42803 -2 -II



criminal conduct rule because that finding can only serve to decrease the defendant' s possible

sentence. See Apprendi, 530 U. S. at 490; Markel, 154 Wn.2d at 274.


            We hold that the issue of same criminal conduct is properly decided by the sentencing

court. Accordingly, the trial court here did not err in refusing to submit the issue to a jury.

            We consider McCarthy' s remaining arguments in the unpublished portion of this opinion.

We affirm his convictions and sentence.


            A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for


public record in accordance with RCW 2. 06. 040, it is so ordered.

            In the unpublished portion of this opinion, we address and reject McCarthy' s remaining

arguments. We hold that that ( 1) the trial court correctly disqualified the Kitsap County

Prosecutor' s Office and reset the trial date, and McCarthy failed to preserve his challenge to
                                                                                                                             B
resetting the trial date; ( 2)      evidence of       McCarthy' s    prior   bad   acts   toward his   girl   friend, TLC,


was admissible      to   explain   her delayed reporting        of   the   charged crimes; (
                                                                                                3) the trial court properly

excluded evidence of TLC' s misconduct because it was irrelevant and cumulative, and admission


was not supported        by    res gestae; (   4) the trial court did not abuse its discretion in excluding

McCarthy' s proposed domestic violence expert because his testimony would not have helped the

jury   to   understand   the   evidence; (     5) TLC' s prior consistent statements were admissible under ER


801( d)( 1)( ii) because       McCarthy implied        that TLC had fabricated her story; ( 6) TLC' s vague


comment about excluded evidence                 did   not require a mistrial; (     7) because he did not object below,


we do not consider McCarthy' s claims that providing the jury with a tape measure and masking

tape resulted injury misconduct and violated his right to have a verdict based on the evidence;


8
    We refer to the victim by her initials to protect her privacy.
                                                               12
No. 42803 -241



and ( 8) the trial court acted within its discretion when it found that the two assault convictions

were not the same criminal conduct.


                                      ADDITIONAL FACTS


Charged Crimes


       McCarthy and TLC began a romantic relationship in June 2008, and in August 2008 TLC

moved into McCarthy' s house. At the time, McCarthy was a senior sergeant for the Port

Orchard Police Department. He previously had worked as a Kitsap County deputy sheriff for

several years. The relationship was tumultuous. For instance, in November 2008, McCarthy

threatened TLC with a propane torch and set fire to her belongings during an argument.

        Shortly after 4: 00 a.m. on May 2, 2010, McCarthy made a 911 call reporting that his girl

friend had fallen from a second story window. When the paramedics arrived, they found TLC

lying on the deck directly below a window with a curtain rod lying on top of her. When the

paramedics initially asked TLC what had happened, she told them that she had been hanging

curtains and fell from the window. When asked a second time, she said she was fearful of police

and refused to say what had happened. McCarthy told the paramedics that TLC fell while

hanging curtains.

        Because McCarthy had sounded hostile when he called 911, Kitsap County sheriff' s

deputies accompanied the paramedics to the scene. When the deputies asked McCarthy what

had happened, he told them that he heard TLC yelling while he was in the shower and, when he

went to investigate, he found her lying on the ground below the window. He said that TLC had

fallen while hanging curtains. When the deputies asked TLC what had happened, she did not

respond.




                                                  13
No. 42803 -2 -II



         TLC      suffered serious   injuries. She fractured her right ankle and shoulder and suffered a


brain injury. She underwent multiple surgeries and spent five weeks in the hospital.

          On August 31, 2010, TLC reported to a detective at the Kitsap County Sheriff' s Office

that McCarthy had pushed her out the window on May 2. The record does not disclose exactly

what TLC told the police at that time. However, she testified at trial that she had been packing

her belongings in preparation to move out of McCarthy' s house later that day when she felt a gun

to the back of her head and heard McCarthy say that he was going to kill her. TLC ran toward

the window in an attempt to escape, but McCarthy grabbed her and slammed her against the

wall. As she tried to remove the gun from his hand, the two fell to the ground. When they

returned to their feet, McCarthy again held the gun to TLC' s head. TLC then kicked McCarthy

and ran   to the   window and stood on      the ledge —intending to lower herself to the ground below.

While TLC was standing on the windowsill McCarthy shoved her in the back, knocking her out

of the window.



          The State charged McCarthy with second degree assault, RCW 9A.36. 021( 1)( c),

presumably for holding a gun to TLC' s head, and first degree assault, RCW 9A.36. 011( 1)( a) and

 c),   presumably for pushing her out the window.

Trial Continuance


          Trial   was set   for August 23, 2011. On August 12, the State moved to withdraw from the


case because of a perceived conflict of interest that precluded the entire Kitsap County

Prosecutor' s Office from trying the case. Interviews with law enforcement officers suggested to

the State that Kitsap County prosecuting attorneys could be required to testify at trial. The trial

court disqualified the entire Kitsap County Prosecutor' s Office. The Washington State Office of

the Attorney General agreed to prosecute the case.

                                                          14
No. 42803 -2 -II



       As a result of the disqualification, the trial court reset the time for trial deadline under

CrR 3. 3 to October 11.       The State moved for a continuance to October 18, one week past the CrR


3. 3 trial deadline. Although the State could have been ready for trial by October 11, TLC was

unavailable that week. The trial court granted the continuance.


Pre -Trial Evidentiary Rulings

       Before trial, the State moved to allow evidence of McCarthy' s prior bad acts relating to

TLC to prove that she was in reasonable fear of imminent danger for the second degree assault


charge and to explain that TLC did not immediately report the assaults because she feared

retaliation from McCarthy. The trial court granted the motion with regard to certain specific

acts, concluding that the following evidence was admissible to show TLC' s reasonable fear of

McCarthy     and   to   explain   her   delay   in reporting the incident: (     1) McCarthy had struck TLC,

             restrained    her    with   handcuffs,   and   locked her in   a closet; ( 2)   on November 2 -3, 2008,
physically


                          TLC, burned her property,                 threatened   her   with a   lit   propane   torch; ( 3)
McCarthy     assaulted                                        and




McCarthy had contacted TLC on numerous occasions in November and December of 2008, in
violation of a no- contact order; (        4) McCarthy purposefully had hurt TLC' s dog while visiting

TLC in the hospital in           June
                             May -          2010; ( 5)   McCarthy had delayed in obtaining medicine for

TLC' s dog; and ( 6) McCarthy routinely had threatened to call police and have TLC arrested

during the course of their relationship.

        The State also moved.to exclude evidence that TLC previously had assaulted McCarthy

and also had assaulted a third party. The trial court granted the motion and excluded the

evidence, although several incidents of TLC' s violence towards McCarthy were admitted at trial

without objection.




                                                              15
No. 42803 -2 -II



          Finally, the State moved to exclude McCarthy' s proposed domestic violence expert, a

psychologist who McCarthy indicated would testify that TLC' s and McCarthy' s relationship was

dysfunctional and marked by domestic violence. The trial court granted the motion because the

jury did not need an expert to assist it in understanding that the couple had a tumultuous

relationship and because the necessary foundation for the expert' s testimony included TLC' s

prior bad acts, which would have been unduly prejudicial.

Trial Testimony

          At trial, the State asked TLC whether McCarthy knew in May 2010 that she had been

preparing to   move out of     his home. TLC          responded, "      He knew I was moving, like he did a

million   times before, but he     would always          find   ways,   like I   said, either   making   me sick, [ or]



other   things that I' m   not allowed     to talk   about."     Report of Proceedings ( RP) at 248. McCarthy

objected and asked     the trial   court   to   strike   the   statement.   The trial   court agreed,     stating, " It' s


stricken."   RP at 248. McCarthy nevertheless moved for a mistrial, arguing that TLC' s statement

that there   were other " `   things' "    she could not talk about violated the trial court' s ruling limiting

the introduction of McCarthy' s prior bad acts to specific events. RP at 258. McCarthy also

argued that the error could not be cured by a limiting instruction because the statement was not

specific enough to be rebuttable. The trial court denied the motion.


          Three State witnesses testified about what TLC had told them had occurred on May 2.

All of these statements occurred before TLC reported the assaults to the sheriff' s office.


McCarthy made hearsay objections, but the trial court ruled that the statements were prior

consistent statements and therefore not hearsay. Seven other witnesses offered similar

testimony, but McCarthy did not object.



                                                                16
No. 42803 -2 -II



Conviction and Sentencing

            The jury convicted McCarthy on both assault charges. At sentencing, the trial court

concluded that the first and second degree assault convictions were not the same criminal


conduct because McCarthy had time to pause and reflect upon his actions between committing

the assaults.


                                                           ANALYSIS


A.          TIME FOR TRIAL


            McCarthy argues that the trial court improperly extended his trial date beyond that

authorized by CrR 3. 3, and therefore we should reverse his conviction.9 He argues that ( 1) the

trial court erroneously concluded that there was a conflict of interest with the Kitsap County

Prosecutor' s Office, and ( 2) even if there was a conflict of interest, the time for trial violation


resulted from government mismanagement. Therefore, McCarthy argues, there was no

justification for extension of the CrR 3. 3 trial deadline. Because McCarthy failed to preserve

these claims, we decline to review them.


            A defendant in custody pending trial must be brought to trial no later than 60 days after

the commencement          date,      which   initially   is the   arraignment   date. CrR 3. 3( b)( 1), (      c)(   1);   State v.


Williams, 104 Wn.         App. 516,      521, 17 P. 3d 648 ( 2001).         However, the commencement date


 shall" be reset upon disqualification of counsel, and under such circumstances the date of

disqualification is the        new commencement             date. CrR 3. 3(   c)(   2)(   vii).   The State' s failure to bring

a defendant to trial within the time provided by CrR 3. 3 results in dismissal with prejudice. CrR

3. 3( h).



  Although         McCarthy    mentions      his " right to   a   speedy trial,"   he bases his analysis only on CrR
3. 3.   Br.   of   Appellant   at   31 ( boldface   and capitalization omitted).            Therefore, we analyze this
argument under the time for trial rules.
                                                                   17
No. 42803 -2 -II



              However, CrR 3. 3 contains specific requirements for time to trial objections.


              A party who objects to the [ trial start] date set upon the ground that it is not within
              the time limits prescribed by this rule must, within 10 days after the notice is
              mailed or otherwise given, move that the court set a trial within those time limits.
              Such motion shall be promptly noted for hearing by the moving party in
                            local procedures. A party who fails, for any reason, to make
              accordance with

              such a motion shall lose the right to object that a trial commenced on such a date
              is not within the time limits prescribed by this rule.

CrR 3. 3( d)( 3).


              The trial court originally set McCarthy' s trial date for August 23, 2011, with a time for

trial deadline of September 22. On August 12, the trial court granted the State' s motion to


disqualify the entire Kitsap County Prosecutor' s Office from the case because of an alleged

conflict of       interest. Consistent      with   CrR 3. 3(   c)(   2)(   vii),   the trial court reset the commencement


date for the time for trial calculation to August 12, which reset the time for trial deadline to

October 11.         The court then set the trial date for October 18, after the State mad an immediate

motion to continue the trial past the new deadline.

              McCarthy did not object to the trial court' s decision to reset the trial date. CrR 3. 3

violations are not constitutionally based and cannot be raised for the first time on appeal. RAP

2. 5(   a)(   3); State   v.   Smith, 104 Wn. 2d 497, 508, 707 P. 2d 1306 ( 1985).                McCarthy' s failure to

object forecloses his ability to challenge the time for trial date under CrR 3. 3( d)( 3)."

B.            MCCARTHY' S PRIOR MISCONDUCT


              McCarthy argues that the,trial court erred when it granted the State' s motion to admit

under ER 404(b) particular instances of his prior assaults and other misconduct toward TLC. He


 io
  McCarthy also did not object below to the trial court' s disqualification of the entire Kitsap
County Prosecutor' s Office. As a result, under RAP 2. 5( a) he has waived this issue for appeal
because he does not claim that any of the exceptions in RAP 2. 5( a) apply. And he does not
argue that the trial court abused its discretion by granting the State' s motion to continue the trial
 date past the new time for trial deadline to October 18.
                                                                     18
No. 42803 -2 -II



further argues that the admission of this evidence without a limiting instruction violated his due

process rights because his conviction was based on inadmissible propensity evidence. We

disagree.


          1.   ER 404(b) Analysis


         Under ER 404( b), "[ e] vidence of other crimes, wrongs, or acts is not admissible to prove


the   character of a person       in   order       to   show action   in conformity therewith." However, this


evidence may be admissible " for other purposes, such as proof of motive, opportunity, intent,

preparation, plan,      knowledge,          identity,     or absence of mistake or accident." .    ER 404( b). ER


404( b)' s list of other purposes for which evidence of a defendant' s prior misconduct may be

introduced is not exclusive. State v. Baker, 162 Wn. App. 468, 473, 259 P. 3d 270, review

denied, 173 Wn.2d 1004 ( 2011).                    We review the trial court' s decision to admit evidence under


ER 404(b) for abuse of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009).

          ER 404( b) must be read in conjunction with ER 403, which requires the trial to court to


exercise its discretion in evaluating whether relevant evidence is unfairly prejudicial. Fisher,

165 Wn.2d      at   745. Before        a   trial   court admits evidence under      ER 404( b),   it must ( 1) find by a

preponderance of        the   evidence       that the      misconduct occurred, (   2) identify the purpose for

admitting the       evidence, (   3) determine the relevance of the evidence to prove an element of the


crime, and ( 4) weigh the probative value of the evidence against its prejudicial effect. Fisher,

 165 Wn.2d     at   745.   The trial court must complete this ER 404( b) analysis on the record in order

to permit the appellate court to determine whether the trial court' s exercise of discretion was

based on careful and thoughtful consideration of the issue. State v. Stein, 140 Wn. App. 43, 67,

 165 P. 3d 16 ( 2007).        However, when the record as a whole allows us to decide the admissibility




                                                                      19
No. 42803 -2 -II



of evidence, a trial court' s failure to articulate the ER 404(b) balancing process on the record is

not reversible error. State v. Gogolin, 45 Wn. App. 640, 645, 727 P. 2d 683 ( 1986).

         The trial court ruled that evidence of McCarthy' s prior assaults on TLC was relevant for

two reasons. First, the evidence showed her reasonable fear that McCarthy would shoot her.

The State had the burden of showing that TLC had a reasonable apprehension of bodily injury

when McCarthy put a gun to her head and threatened to kill her. The trial court instructed the

jury that an " assault" is " an act done with the intent to create in another apprehension and fear of

bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear
                              though the                did         actually intend to inflict    bodily injury."    Clerk' s
of   bodily injury     even                     actor         not




Papers ( C P)    at   83.   This statement is consistent with the common law definition. See State v.

Elmi, 166 Wn.2d 209, 215, 207 P. 3d 439 ( 2009) ( holding                       that one type of assault is " putting

another    in   apprehension of      harm "). Under ER 404( b), evidence of a defendant' s prior violent


acts can   be   admitted      to   show   the   victim' s " `   reasonable    fear   of   bodily injury' "   as part of the


State' s burden to prove that element of the crime of assault. State v. Magers, 164 Wn.2d 174,

183, 189 P. 3d 126 ( 2008). Therefore, we agree with the trial court that evidence of prior assaults


was relevant to show TLC' s reasonable fear of bodily injury.

          Second, the trial court ruled that evidence of prior assaults was relevant to explain TLC' s

delay in reporting the incident. When the victim' s credibility is at issue, evidence of the

defendant' s prior physical abuse of the victim may be admissible under ER 404( b) to explain the

victim' s delay in reporting subsequent abuse. Magers, 164 Wn.2d at 185 -86; Baker, 162 Wn.

App. at 475.

          As Division One of this court noted in Baker:




                                                                      20
No. 42803 -2 -II


         V] ictims of domestic violence often attempt to placate their abusers in an effort
       to avoid repeated violence, and often minimize the degree of violence when
       discussing it   with others.   The [ victim' s] credibility was a central issue at trial.
       The jury was entitled to evaluate her credibility with full knowledge of the
       dynamics of a relationship marked by domestic violence and the effect such a
       relationship has on the victim."

162 Wn. App. at 475 ( quoting State v. Grant, 83 Wn. App. 98, 107 -08, 920 P. 2d 609 ( 1996)).

       TLC did not report the May 2 assault until August 31, nearly four months after it

occurred. Moreover, on cross -examination, defense counsel questioned TLC about why she did

not tell the paramedics that she had been pushed out of a window when they arrived to assist her

on May 2, thereby placing her credibility at issue. Therefore, we agree with the trial court that

evidence of McCarthy' s prior assaults was relevant to explain TLC' s delayed reporting. Baker,

162 Wn. App. at 475.

        The trial court also ruled that evidence that McCarthy had intentionally hurt TLC' s dog

and had delayed in obtaining medicine for the dog was relevant to explain TLC' s delayed

reporting of the incident. The evidence showed that TLC had reason to believe that McCarthy
might hurt the dog if she disclosed what had really happened. We agree that the evidence is
relevant for this purpose.


        Finally, the trial court ruled that evidence that McCarthy and his law enforcement
 associates frequently violated no- contact orders relating to TLC and that McCarthy routinely had
 threatened to call the police and have TLC arrested was relevant to show that TLC did not trust

 local police. This distrust was relevant to explain TLC' s delay in reporting the incident to the

 police. We agree that the evidence is relevant for this purpose.




                                                    21
No. 42803 -2 -II



         2.   Probative Value


         Because the evidence of McCarthy' s prior bad acts was relevant, the key issue here is .

whether the prejudicial effect of that evidence outweighed its probative value. ER 403 provides


that relevant evidence may be excluded if its probative value is " substantially outweighed by the

danger   of unfair prejudice."   The trial court ruled that the probative value of the bad acts


evidence outweighed the danger of unfair prejudice. We review a trial court' s ER 403 balancing

under a " ` manifest abuse of    discretion' " standard of review. State v. Vreen, 143 Wn.2d 923,


932, 26 P. 3d 236 ( 2001) ( internal   quotation marks omitted) (   quoting State v. Luvene, 127 Wn.2d

690, 706 -07, 903 P. 2d 960 ( 1995)).


         With regard to proving apprehension of harm, the probative value of this prior assault

evidence was relatively slight. The State already had submitted evidence that McCarthy had

placed a loaded gun against TLC' s head and threatened to kill her. Arguably, this conduct would

have created an obvious fear of bodily injury regardless of McCarthy' s prior misconduct.

Because bad acts evidence is inherently prejudicial, the probative value to show apprehension of

harm could be outweighed by the danger of unfair prejudice.

         On the other hand, TLC' s delayed report of the incident to law enforcement was a crucial


issue at trial. McCarthy emphasized that TLC' s initial statements to the police were accurate and

her subsequent testimony was not, and that she did not report that he had assaulted her because

he had not. Evidence of McCarthy' s abusive behavior toward TLC, misconduct toward her dog,

and misconduct causing TLC to distrust the police was highly probative for explaining her

conduct after the incident. We agree with the trial court that the probative value of this evidence


outweighed the danger of unfair prejudice.




                                                    22
No. 42803 -2 -II



       We hold that the trial court did not abuse its discretion under ER 404( b) in allowing

evidence of McCarthy' s prior bad acts.

        3.     Limiting Instruction

        McCarthy argues that his convictions were based on inadmissible propensity evidence in

violation of his due process rights because the trial court failed to instruct the jury to use the ER

404(b) evidence for the limited purpose of proving an element of the crime and evaluating TLC' s

                                                                          limiting   instruction if he                   If
credibility. We    agree   that     McCarthy was      entitled   to   a                                  wanted one. "




evidence of a defendant' s prior crimes, wrongs, or acts is admissible for a proper purpose, the

defendant is   entitled   to   a   limiting   instruction   upon request."      State v. Gresham, 173 Wn.2d 405,


423, 269 P. 3d 207 ( 2012).


        Nevertheless, although the trial court invited defense counsel to request a limiting

instruction, defense counsel did not. McCarthy does not assign error to his counsel' s failure to

propose a limiting instruction and we presume that defense counsel' s choice not to request one

was a tactical decision to avoid drawing further attention to the evidence. State v. Barragan, 102

Wn.   App.   754, 762, 9 P. 3d 942 ( 2000).           And to the extent that McCarthy assigns error to the

trial court' s failure to provide a limiting instruction sua sponte, his claim fails because the trial

court has no such duty. Gresham, 173 Wn.2d at 423 n. 2.

C.      EXCLUSION OF TLC' s PRIOR MISCONDUCT


        McCarthy argues that the trial court violated his constitutional rights to confront his

accuser and to present a defense by excluding evidence of TLC' s prior assaults against him and a

third party. We disagree.




                                                               23
No. 42803 -2 -II


          1.    Right of Confrontation


          The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee the rights to confront and cross -examine adverse witnesses


and to present testimony in one' s defense. State v. Hudlow, 99 Wn.2d 1, 14, 659 P. 2d 514

 1983).    The right to confrontation includes the right to elicit facts tending to show a witness' s

bias, but the scope or extent of cross -examination eliciting a witness' s bias is within the

discretion     of   the trial   court.   State   v.   Roberts, 25 Wn.   App.   830, 834, 611 P. 2d 1297 ( 1980). If a


trial court erroneously excludes evidence in violation of a defendant' s constitutional rights to

confrontation or        to   present a   defense, " reversal     is required unless no rational jury could have a

reasonable doubt that the defendant would have been convicted even if the error had not taken

place."    State v. Spencer, 111 Wn. App. 401, 408, 45 P. 3d 209 ( 2002).

          The right to confrontation is not absolute. State v. Darden, 145 Wn.2d 612, 620, 41 P. 3d

1189 ( 2002).        The trial court' s decision to exclude impeachment evidence based on evidentiary

rules will not infringe on a defendant' s constitutional rights unless excluding the evidence

 wholly prevented [ the defendant] from cross -examining key witnesses on certain subjects

central   to [ his] defense[ ]."         State   v.   French, 157 Wn. 2d 593, 604, 141 P. 3d 54 ( 2006). " A trial


court may, in its discretion, reject cross -examination where the circumstances only remotely tend

to show bias or prejudice of the witness, where the evidence is vague, or where the evidence is

merely    argumentative and speculative."                  Roberts, 25 Wn. App. at 834. And a criminal defendant

has no constitutional right to present irrelevant evidence. Hudlow, 99 Wn.2d at 15.


          We review a trial court' s ruling on the admissibility of evidence for abuse of discretion.

Darden, 145 Wn.2d at 619. Therefore, we will not reverse such a ruling unless the trial court' s

decision was manifestly unreasonable or based upon untenable grounds or reasons. Darden, 145

                                                                 24
No. 42803 -2 -II



Wn.2d at 619. We may review de novo an alleged denial of the Sixth Amendment right to

present a defense and confront witnesses, but only if the evidence is material and the defendant' s

need to present the evidence outweighs the State' s interest in precluding the evidence. State v.

Jones, 168 Wn.2d 713, 719, 230 P. 3d 576 ( 2010).


            2.    TLC' s Assaults on McCarthy

            McCarthy argues that testimony regarding TLC' s acts of violence against him was

admissible to show TLC' s bias against him. However, the trial court properly excluded this

evidence because it was cumulative, and the State did not open the door to its admission.


            First, the evidence of TLC' s assaults on McCarthy would have duplicated similar

evidence. The trial court' s exclusion of specific incidents of prior violence did not prevent

McCarthy from testifying about TLC' s behavior towards him or the nature of their relationship.

He testified that ( 1) TLC went " berserk" when she was angry, stating that she was " U] ust

absolutely       wild,   angry, screaming      and   yelling," RP      at   1030; ( 2) " when she gets enraged, there' s


just   no   reasoning    with   her"   and she " wins      her   arguments     by just keep    on   going [ sic]   at   it ...   until




she gets     angry   and   then   starts   breaking   things," RP at 1033, 1078;'( 3) she " terrorized" and



blackmailed him by threatening to disclose to the police that he had violated his no- contact order

on numerous occasions, RP at 1071, 1073; and ( 4) she was " controlling" and constantly

monitored his computer and cellular telephone and secretly audio -taped him on multiple

occasions. RP at 1068.


            Moreover, at trial McCarthy was permitted to testify without objection regarding specific

incidents of TLC' s violence against him. He testified that ( 1) she " came over and hauled off and

cracked me right across           the face," RP      at   1032; ( 2)   she " smacked"      him, RP    at   1039; ( 3) after an


 argument she        took his   computer and " smashed            it to bits   all over   the floor," RP    at   1035; ( 4) she


                                                                  25
No. 42803 -2 -II



smashed his cellular telephone during an argument; and ( 5) he had to call the police because she

refused to allow him to leave his bedroom. And TLC admitted that her counselor advised her to

read about anger management.




              Given this' evidence, additional evidence of TLC' s assaults against McCarthy would have

been cumulative and would not have been significant. As a result, McCarthy has failed to show

that his inability to present this evidence wholly prevented him from cross -examining a key

witness central to his defense and that the trial court' s exclusion of the testimony violated his

constitutional right to present a defense. French, 157 Wn.2d at 604 -05. And because the


evidence was cumulative, under ER 403 the trial court did not abuse its discretion in excluding it.

              Second, we reject McCarthy' s argument that the State opened the door to evidence of

TLC' s abusive behavior toward McCarthy by eliciting testimony regarding McCarthy' s abuse of

TLC. In support of this argument, he relies on State v. Gefeller, in which our Supreme Court


held that where the defendant elicited testimony from a witness that lie detector test results were

 inconclusive,"         he opened the door for the State to ask the witness to explain what he meant by

inconclusive       results.   76 Wn.2d 449, 454 -55, 458 P. 2d 17 ( 1969),     overruled on other grounds by

State    v.   Hill, 123 Wn.2d 641, 870 P. 2d 313 ( 1,994).        The court held that " when a party opens up a

subject of inquiry on direct. or cross -examination, he contemplates that the rules will permit

cross -examination or redirect examination, as the case may be, within the scope of the

examination        in   which   the   subject matter was   first introduced." Gefeller, 76 Wn.2d at 455.


              However, McCarthy does not explain how evidence of his assaults against TLC somehow

opened the door for evidence of her assaults against him. The general desire to " complete the


picture" of the couple' s relationship is not a sufficient basis to indiscriminately open the door to

all of   TLC'     s prior misconduct.
No. 42803 -2 -II


         3.        TLC' s Assault on Third Person


         McCarthy argues that TLC' s assault on a third party should have been admitted. He

claims that TLC assaulted a pregnant stranger by ripping a necklace from the stranger' s neck,

and that he had talked officers out of making a custodial arrest. He argues that this evidence was

admissible under ER 106 ( the rule of completeness) or the res gestae exception to ER.404( b).

We disagree.


         First, McCarthy argues that the police report from TLC' s assault on a third party should

have been      admissible under      ER 106. ER 106          provides, "    When a writing or recorded statement or

part thereof is introduced by a party, an adverse party may require the party at that time to

introduce any other part, or any other writing or recorded statement, which ought in fairness to

be   considered      contemporaneously       with    it."   But McCarthy does not point to a writing or a

recorded statement that the State introduced into evidence that was part of or related to the police


report. Moreover, he fails to show how evidence of TLC' s assault of a third party should " in

fairness" be considered with TLC' s testimony that McCarthy threatened to have her arrested for

no reason.




         Second, McCarthy' s " res gestae" argument similarly fails. Under the theory of res

gestae, evidence of prior       bad   acts   is   admissible   if it " `complete[ s] the story of the crime on trial


by providing its       immediate    context of      happenings      near   in time   and place' "   because such


evidence      is   relevant under   ER 401.       State v. Grier, 168 Wn. App. 635, 646, 278 P. 3d 225 ( 2012)

 alteration    in   original) ( internal quotation marks omitted) (           quoting State v. Lane, 125 Wn.2d 825,

 831, 889 P. 2d 929 ( 1995)).        Accordingly, "[ w]here another offense constitutes a ` link in the

chain' of an unbroken sequence of events                surrounding the       charged offense,"      evidence of that



 offense is admissible in order to complete the picture for the jury. State v. Brown, 132 Wn.2d

                                                               27
No. 42803 -2 -II


529, 571, 940 P. 2d 546 ( 1997) (        quoting State v. Tharp, 96 Wn.2d 591, 594, 637 P. 2d 961

 1981)).


           Here, McCarthy argues that TLC' s assault on a third party should have been admitted to

 complete       the story   of each prior alleged   incident [ in   which     McCarthy           allegedly harmed her],   so




that the jury     received a complete picture."       Br.   of   Appellant    at   28   n. 13.   He appears to ask us to


apply the res gestae theory to admit prior bad acts of someone other than the defendant to

complete the picture of an event other than the one for which the defendant was charged. This

                                                                          1
argument extends        the   so- called " res gestae rule"   too far.'


             We hold that the trial court did not violate McCarthy' s right to confront witnesses against

him or to present a defense and did not abuse its discretion when it excluded evidence of TLC' s

prior misconduct.



D.           DOMESTIC VIOLENCE EXPERT


             McCarthy argues that the trial court abused its discretion when it excluded his proposed

domestic violence expert. The State responds that the trial court properly excluded the testimony

because it would not have been helpful to the jury, and therefore was inadmissible under ER 702.

We agree with the State.


             We review a trial court' s decision to exclude expert testimony for abuse of discretion.

State   v.    Willis, 151 Wn. 2d 255, 262, 87 P. 3d 1164 ( 2004).. ER 702                 provides, "   If scientific,


technical, or other specialized knowledge will assist the trier of fact to understand the evidence


or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training,      or education,   may testify thereto in the form       of an opinion or otherwise."            Under ER


702, an expert' s opinion is admissible if the witness is properly qualified, relies on generally


ii
     See our discussion of the so- called res gestae rule in Grier, 168 Wn. App. at 645 -47.
                                                              28
No. 42803 -2 -II



accepted theories, and the expert' s testimony is helpful to the trier of fact. State v. Black, 109

Wn.2d 336, 341, 745 P. 2d 12 ( 1987).   The trial court excluded testimony from McCarthy' s

proposed domestic violence expert because the proffered testimony was within the general

knowledge of jurors and would not assist them to understand the evidence as required by ER

702. McCarthy argued below that the expert' s testimony would help the jury understand why

TLC would delay in reporting the incident, remain in contact with McCarthy after the assault

occurred, and " stay in a relationship fraught with such ongoing emotional and physical abuse."

CP at 56. But McCarthy has failed to show how the expert' s testimony was relevant to any

aspect of his defense. Why TLC stayed in the relationship sheds no light on whether the charged

assaults occurred. As a result, he has failed to show that the testimony would have been Helpful

to the jury under ER 702.

        Even if the expert' s testimony would have been helpful to the jury, the trial court

concluded that it was inadmissible under ER 403 because it would have confused the jury and

was unduly prejudicial. The trial court reasoned:

        Dr. Rybicki' s proffered testimony would delve into past behaviors of [TLC] and
        the defendant that are far afield from the primary issue of whether assaults
        occurred on May 2, 2010.      The court is extremely concerned that Dr. Rybicki' s
        testimony would carry the case outside the scope of the relevant facts and the
        court would lose control over restricting the case to relevant evidence.

CP at 245.


        Further, the trial court concluded that in order for the expert to form his opinion, he was


required to rely on inadmissible evidence of TLC' s prior bad acts towards McCarthy. We agree

that the proposed expert testimony regarding the nature of the parties' relationship would have

confused the jury and was unduly prejudicial. The trial court did not abuse its discretion when it

excluded Dr. Rybicki' s testimony

                                                  29
No. 42803 -2 -II



          McCarthy      argues   that the   expert   testimony           was admissible   because "[ w] here the


prosecution introduces testimony about prior abuse between the defendant and another person,

expert   testimony is   admissible    to    help   the   jury    evaluate    credibility." Br. of Appellant at 30. In


support of his argument, McCarthy relies on Grant, in which Division One of this court held that

evidence of the defendant' s earlier assaults on the victim was admissible under ER 404(b)


because it helped to establish the victim' s credibility and to explain why the victim minimized

the extent of the abuse and why she delayed in reporting it. 83 Wn. App. at 107 -09. But

contrary to McCarthy' s assertion, Grant does not stand for the proposition that a defendant may

introduce prior bad acts of the victim by means of expert testimony to either discredit the
                                                                    12
victim' s   testimony   or support   his    own    credibility.


          Given the expert' s minimal helpfulness to the jury and the potentially prejudicial and

misleading content of his testimony, we hold that the trial court did not abuse its discretion when

it excluded the testimony.

E.        TLC' s PRIOR CONSISTENT STATEMENTS


          McCarthy argues that the trial court abused its discretion when it allowed witnesses to

testify over his hearsay objection about TLC' s prior statements about the incident. He also

argues that his counsel was ineffective for failing to object to other similar statements and for

failing to request a limiting instruction. We disagree.




12
   McCarthy also argues that that the State " opened the door" to the expert testimony by
introducing evidence of "prior incidents that allegedly resulted in [TLC]' s delayed reporting,
inconsistent      statements, and   contradictory behavior."                Br. of Appellant at 30. However, although
he cites three cases generally discussing the " opening the door" doctrine, he fails to further
support his argument with citations to the record or authority. Accordingly, we decline to
address     his   argument   further. RAP 10. 3(         a)(   6); State v. Olson, 126 Wn.2d 315, 321, 893 P. 2d 625
 1995).
                                                                  30
No. 42803 -2 -II



          1.         ER 801( d)( 1)( ii) Analysis


          We review evidentiary rulings for abuse of discretion. Darden, 145 Wn.2d at 619.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or

hearing,       offered   in   evidence   to   prove -he
                                                    t     truth   of   the   matter asserted.    ER 801(   c).   Hearsay is

generally inadmissible. ER 802. However, a statement is not hearsay if

           t]he declarant testifies at the trial or hearing and is subject to cross examination
          concerning the           statement, and    the   statement         is ...   consistent with the declarant' s
          testimony and is offered to rebut an express or implied charge against the
          declarant of recent fabrication or improper influence or motive.


ER 801( d)( 1)( ii).        Accordingly, although a witness' s prior consistent statements are not

admissible to prove that in -
                            court testimony is true, the statements are admissible to rebut an

alleged fabrication. State v. Perez, 137 Wn. App 97, 107, 151 P. 3d 249 ( 2007).

           Our Supreme Court has adopted an additional requirement for application of ER

801( d)( 1)( ii): "[ T] he      proponent of the testimony must show that the witness' s prior consistent

statement was made before the witness' s motive to fabricate arose in order to show the

testimony'       s   veracity   and   for ER 801( d)( 1)( ii) to apply." State v. Thomas, 150 Wn.2d 821, 865,


83 P. 3d 970 ( 2004). This is because "[ m] ere repetition of a statement made when the motive to


fabricate      was    the   same   does nothing to    establish        veracity."     State v. Brown, 127 Wn.2d 749, 758


n. 2,   903 P. 2d 459 ( 1995). In         addition, "     a charge of recent fabrication can be rebutted by the use

of prior consistent statements only if those statements were made under circumstances indicating

that the witness was unlikely to have foreseen the legal consequences of his or her statements."

State v. Makela, 66 Wn. App. 164, 168 -69, 831 P. 2d 1109 ( 1992).

           In this case, defense counsel raised. an inference that TLC had fabricated her story by

confronting her with statements she allegedly made to paramedics that she fell from the window


                                                                   31
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instead of being pushed and statements she made at the hospital about having jumped out the

window. Defense counsel also questioned whether TLC' s trial.testimony that she flew out the

window was fabricated, asserting that she had not given that description before trial. Even if

there is no express claim of fabrication, an inference that a witness has fabricated testimony is

sufficient   to trigger   application of ER   801( d)( 1)( ii). Thomas, 150 Wn.2d at 865.


        Further, most of the prior consistent statements admitted into evidence were made while


TLC was in the hospital immediately after the incident or within several weeks thereafter. All

the statements were made long before TLC reported the incident to the sheriff' s office. The

timing of the statements supports a finding that they were made before TLC had a motive to

fabricate and before TLC could foresee the legal consequences of her statements.

        We hold that the trial court did not abuse its discretion when it admitted TLC' s prior

consistent statements under ER 801( d)( 1)( ii).


        2.       Ineffective Assistance of Counsel


        McCarthy also argues that his trial counsel was ineffective for failing to object to other

alleged hearsay testimony regarding TLC' s prior statements about what occurred on May 2,

2010, and for failing to request a limiting instruction.. We disagree.

        We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,


the defendant     must show    both that ( 1) defense   counsel' s representation was "   deficient," and ( 2)


the deficient representation prejudiced the defendant. Strickland v. Washington, 466 U. S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d


 1260 ( 2011).    The failure to show either element ends our inquiry. State v. Hendrickson, 129

Wn.2d 61, 78, 917 P. 2d 563 ( 1996),       overruled on other grounds by Carey v. Musladin, 549 U. S.

                                                        32
No. 42803 -2 -II



70, 127 S. Ct. 649, 166 L. Ed. 2d 482 ( 2006).                Representation is deficient if, after considering all

the   circumstances,     it falls below    an objective standard of reasonableness.               Grier, 171 Wn.2d at


33.   Prejudice exists if there is a reasonable probability that, except for counsel' s errors, the

result of the proceeding would have been different. Grier, 171 Wn.2d at 34.

         We give great deference to trial counsel' s performance and begin our analysis with a


strong   presumption      that   counsel' s performance was reasonable.                Grier, 171 Wn.2d            at   33.     A


claim that trial counsel was ineffective does not survive if trial counsel' s conduct can be

characterized as     legitimate trial strategy       or   tactics.   Grier, 171 Wn.2d       at   33.    To rebut the strong

presumption      that   counsel' s performance was effective, "             the defendant bears the burden of


establishing the absence of any ` conceivable legitimate tactic explaining counsel' s

performance.' "         Grier, 171 Wn.2d at 42 ( quoting State v. Reichenbach, 153 Wn.2d 126, 130,

101 P. 3d 80 ( 2004)).


           The decision     of when or whether         to   object   is   a classic example of     trial tactics."            State v.


Madison, 53 Wn.         App.     754, 763, 770 P. 2d 662 ( 1989). Therefore, we presume that " the failure


to object was the product of legitimate trial strategy or tactics, and the onus is on the defendant to

rebut   this   presumption."      State   v.   Johnston, 143 Wn.          App.   1, 20, 177 P. 3d 1127 ( 2007). "              Only in

egregious circumstances, on testimony central to the State' s case, will the failure to object
constitute     incompetence       of counsel     justifying   reversal."     Madison, 53 Wn.           App.   at   763. To


prove that failure to object rendered counsel ineffective, the defendant " must show that not


objecting fell below prevailing professional norms, that the proposed objection would likely have

been sustained, and that the result of the trial would have been different if the evidence had not

been    admitted."      In re Pers. Restraint ofDavis, 152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004)

 footnotes omitted).


                                                               33
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          In this case, the trial court properly admitted TLC' s prior consistent statements under ER

801( d)( 1)( h), and therefore counsel' s objections would not been successful. Further, because the


trial court allowed evidence of other prior statements over counsel' s objections, McCarthy

cannot show that an objection to the testimony would have been sustained. Davis, 152 Wn.2d at

714. Similarly, whether or not to request a limiting instruction is a matter of trial tactics. State v.

Yarbrough, 151 Wn.           App. 66, 90,       210 P. 3d 1029 ( 2009).                  McCarthy also has failed to show that

the trial court would have granted a request for a limiting instruction. As a result, his ineffective

assistance of counsel claims fail.


F.        MOTION FOR MISTRIAL


          McCarthy argues that the trial court abused its discretion by denying his motion for a
                                                                                                                    13
mistrial   based     on   TLC'    s   inappropriate        comment about           the   exclusion of evidence.          TLC stated


                                            find             like I                                me sick, [ or]   other things that
that   McCarthy " would           always           ways,                 said, either     making


I'   m not allowed    to talk     about."     RP at 248. We disagree.


           We review a trial court' s denial of a mistrial for abuse of discretion. State v. Emery, 174

Wn.2d 741,      765, 278 P. 3d 653 ( 2012). Our Supreme Court has stated that abuse of discretion

will   be found for denial            of a mistrial   only    when " `         no reasonable judge would have reached the


same conclusion.' "          Emery,        174 Wn.2d        at    765 ( internal    quotation marks omitted) (           quoting State

v.   Hopson, 113 Wn.2d 273, 284, 778 P. 2d 1041 ( 1989)).                                We will overturn a trial court' s denial


of a mistrial motion         only      when   there   is   a" `   substantial      likelihood'"     that the error affected the



jury' s   verdict.   State   v.   Rodriguez, 146 Wn.2d 260, 269 -70, 45 P. 3d 541 ( 2002) ( internal




13
     McCarthy also argues that the trial court violated his due process rights by denying his motion
for a mistrial, but fails to support his constitutional claim with argument or citation to authority.
Therefore,     we    do   not address       it. RAP 10. 3(         a)(   6); State v. Johnson, 119 Wn.2d 167, 171, 829
P. 2d 1082 ( 1992).
                                                                          34
No. 42803 -2 -II


quotation marks omitted) ( quoting              State   v.   Russell, 125 Wn.2d 24, 85, 882 P. 2d 747 ( 1994)). A


mistrial should      be   ordered " `     only when the defendant has been so prejudiced that nothing short

of a new    trial   can   insure that the defendant          will   be tried   fairly.' "   Rodriguez, 146 Wn.2d at 270


 quoting State v. Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P. 2d 407 ( 1986)).

        We     examine      three factors —the Hopson factors —when                    determining whether an

irregularity   warrants a mistrial: " `(        1) its seriousness; ( 2) whether it involved cumulative


evidence; and (      3)   whether   the trial   court   properly instructed the jury to disregard it.' "        Emery,

174 Wn.2d      at   765 ( quoting Hopson, 113 Wn.2d                 at   284). These factors are considered with


 deference to the trial         court,"   State v. Perez- Valdez, 172 Wn.2d 808, 818, 265 P. 3d 853 ( 2011);

because the trial court is in the best position to discern prejudice. State v. Lewis, 130 Wn.2d 700,

707, 927 P. 2d 235 ( 1996).


        Regarding the first factor, McCarthy argues that TLC' s comment was a serious

irregularity because the trial court had specifically ruled that only certain instances of

McCarthy' s     prior misconduct were admissible under                     ER 404( b), and the comment' suggested that


McCarthy had committed additional prior bad acts outside the scope of that ruling. The

improper admission of a defendant' s prior misconduct can be a serious irregularity. State v.

Babcock, 145 Wn.           App.    157, 163 -64, 185 P. 3d 1213 ( 2008). And under some circumstances, the


admission of a defendant' s prior bad acts in violation of a motion in limine can be grounds for a

mistrial.    See State     v.   Escalona, 49 Wn.        App.    251, 252, 255 -56, 742 P. 2d 190 ( 1987). But here,


where TLC' s comment did not refer to specific bad acts, but instead was vague and did not refer

to any actual evidence that had been excluded, the irregularity was not particularly serious. The

mere reference to " other things" did not tell the jury anything.



                                                                    35
No. 42803 -2 -II


        With regard to the second factor, even if TLC' s comment could be interpreted as


referring to prior bad acts, it was cumulative. The jury had already heard extensive testimony of

McCarthy' s prior bad acts.

        Finally, the trial court informed the jury that the comment was stricken. Although the

trial court did not give a formal instruction directing the jury to disregard the comment,

McCarthy did not request one. Instead, McCarthy objected and asked the trial court to strike the

comment. The trial court sustained the objection and informed the jury that the comment was

stricken. The irregularity was not so serious that it could not be cured by this prompt response.

And we presume that the jury followed the trial court' s striking of the comment. Babcock, 145

Wn. App. at 164.

        Analysis of the Hopson factors indicates that TLC' s comment did not warrant a mistrial.

We hold that the trial court did not abuse its discretion when it denied McCarthy' s mistrial

motion.




G.      JURY MISCONDUCT/ V ERDICT BASED ON EVIDENCE


        McCarthy argues, for the first time on appeal, that the trial court' s provision of a tape

measure and masking tape to the jury violated his right to a verdict free from jury misconduct

and based solely on the evidence. He claims that the materials allowed the jury to perform

experiments relating to the dimensions of the window and the distance TLC fell. However,

McCarthy has failed to preserve this argument for appeal.

          RAP 2. 5(   a) states   that "[   t] he appellate court may refuse to review any claim of error

which was not raised       in the trial     court."   The purpose behind this rule is to encourage the


 efficient use ofjudicial resources by ensuring that the trial court has the opportunity to correct

 any errors, thereby avoiding unnecessary appeals. State v. Robinson, 171 Wn.2d 292, 304 -05,
                                                             Im
No. 42803 -2 -II


253 P. 3d 84 ( 2011).         RAP 2. 5( a) further states that a party may raise particular types of errors for

the     first time    on appeal,    including " manifest   error   affecting   a constitutional right."    RAP


2. 5(   a)(   3).   But McCarthy fails to argue that any of the exceptions listed in RAP 2. 5( a) apply.

Therefore, we do not address his claims that the trial court' s provision of materials to the jury

violated his right to a verdict free from juror misconduct and based solely on the evidence.

H.             SAME CRIMINAL CONDUCT


               McCarthy argues that his two assault convictions should have been characterized as the

same criminal conduct for offender score and sentencing purposes. We disagree.

               When sentencing a person for multiple current offenses, the sentencing court calculates

the offender score by considering all other current and prior convictions as if they were prior

convictions.           RCW 9. 94A. 589( 1)(   a).   However, if the sentencing court finds that some or all of

the current offenses are the same criminal conduct, those offenses are counted as a single crime.


RCW 9. 94A.589( 1)(           a).   Crimes constitute the " same criminal conduct" when they " require the

same criminal intent, are committed at the same time and place, and involve the same victim."

RCW 9. 94A. 589( 1)(          a).   Unless all three of these elements are present, the offenses are not the


same criminal conduct and must be counted separately in calculating the offender score. State v.

Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997).                   Courts narrowly construe RCW

9. 94A.589( 1)( a) to deny most same criminal conduct claims. State v. Wilson, 136 Wn. App. 596,

 613, 150 P. 3d 144 ( 2007).           The defendant bears the burden of proving that his convictions were

the same criminal conduct. State v. Aldana Graciano, 176 Wn.2d 531, 539 -40, 295 P. 3d 219

  2013).


                We review the trial court' s determination of what constitutes the same criminal conduct


 for    an abuse of      discretion   or misapplication of   the law. Graciano, 176 Wn.2d           at    537. " Under


                                                              37
No. 42803 -2 -II



this standard, when the record supports only one conclusion on whether crimes constitute the

 same criminal conduct,'            a sentencing court abuses its discretion in arriving at a contrary result."

Graciano, 176 Wn. 2d           at   537 - 38. "    But where the record adequately supports either conclusion,

the   matter    lies in the   court' s   discretion." Graciano, 176 Wn.2d at 538.


           In this case, although McCarthy committed the two assaults against the same victim, at

the same place and relatively close in time, the trial court ruled that they were not the same

criminal conduct because McCarthy' s intent was not the same for both crimes. To determine if

two crimes share a criminal intent, we focus on whether the defendant' s intent, viewed

objectively, changed from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743

P. 2d 1237, 749 P. 2d 160 ( 1988).                We also consider whether one crime furthered the other. State

v.   Lessley,   118 Wn.2d 773, 778, 827 P. 2d 996 ( 1992). In addition, when the defendant has time


to " pause, reflect, and either cease his criminal activity or proceed to commit a further criminal

act[,   he] form[ s]   a new     intent to   commit     the   second act."   State v. Grantham, 84 Wn. App. 854,

859, 932 P. 2d 657 ( 1997).


           Even where two assaults were committed against the same victim, in the same place and

close in time, courts have held that where one of the assaults involved a deadly weapon and one

involved the infliction of bodily harm, the crimes do not share the same criminal intent. State v.

Lopez, 142 Wn.         App.    341, 352 -53, 174 P. 3d 1216 ( 2007);         see also Grantham, 84 Wn. App. at

859. Here, McCarthy held a gun to TLC' s head and told her that he was going to kill her. Then,

after TLC kicked him and tried to escape, he pushed her from a second story window. As in

Lopez, it was within the trial court' s discretion to find that during the first assault McCarthy

 intended to cause TLC to fear for her life by putting the gun to her head, while during the second

 assault   he intended to       cause great       bodily harm.    142 Wn.    App.   at   352 -53.   Accordingly, we hold

                                                                 W.
No. 42803 -2 -II



that the trial court did not abuse its discretion when it concluded that the two assault convictions

were not the same criminal conduct.


        We affirm:




                                                   MAxa, J.
We concur:




                                                  39
