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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 70303-0-1


                     Respondent,                      DIVISION ONE


             v.



DANIEL ROSS BARTELS,                                  UNPUBLISHED


                     Appellant.                       FILED: September 29. 2014




       Cox, J. - Daniel Bartels appeals his conviction for first degree robbery,

arguing that the trial court abused its discretion when it denied the jury's request

to rehear a stipulation between the parties. The court's decision was within "the

range of acceptable choices, given the facts and the applicable legal standard."1

And Bartels's claims asserted in his statement of additional grounds do not

warrant relief. We affirm.

       Bartels arranged to buy one pound of marijuana from Keith Blaisdell. He

told his codefendants about the deal and kept them informed about when

Blaisdell would arrive.

       Blaisdell testified that while he was negotiating the deal with Bartels, one

of Bartels's codefendants approached and pointed a gun at him. He also

testified that Bartels and the codefendant then took items from his pocket and



       1 State v. Dye. 178 Wn.2d 541, 548, 309 P.3d 1192 (2013) (internal
quotation marks omitted).
No. 70303-0-1/2



marijuana from his car. Bartels's codefendant then shot Blaisdell, before running

away with Bartels and a third codefendant.

       The State charged Bartels and two codefendants with first degree robbery.

Bartels's codefendants pleaded guilty.

       At trial, Bartels argued his codefendants acted alone. As part of this

argument, Bartels wanted the jury to know that both of Bartels's codefendants

had pleaded guilty. The parties stipulated to this fact. Bartels asked the court to

read the stipulation before the jury listened to opening statements. The State

agreed, and the court informed the jury that Bartels's codefendants "were

previously adjudicated guilty."

       Neither party either marked the stipulation as an exhibit or introduced it as

evidence during the trial.

       During deliberations, the jury asked to hear the stipulation again. The

court declined this request. The jury found Bartels guilty.

       Bartels appeals.

               DECLINING TO REPEAT STIPULATED EVIDENCE

       Bartels argues that the trial court abused its discretion when it denied the

jury's request to hear the stipulation again. We disagree.

       Trial courts have discretion in determining whether to grant a jury's

request to hear evidence again.2 Under CrR 6.15(f)(1), when a deliberating jury

asks to rehear evidence "the court may grant a jury's request to rehear or replay




        CrR 6.15(f)(1).
No. 70303-0-1/3



evidence."3 If the court grants the request, it must avoid placing undue weight on
the evidence.4

       This court reviews a decision on a jury's request to rehear evidence for

abuse of discretion.5 A trial court abuses its discretion when its decision is

manifestly unreasonable or based on untenable grounds or reasons.6 A decision

is manifestly unreasonable when it "falls outside the range of acceptable choices,

given the facts and the applicable legal standard."7 A decision is based on

untenable grounds when the record does not support the court's factual findings.8

A decision is based on untenable reasons when it is based on an incorrect legal

standard, or a misapplication of a correct standard.9

       Here, the trial court did not abuse its discretion by declining to reread the

stipulation to the jury. The trial court declined to reread the evidence for two

reasons.



       First, the court determined that the jury did not need the stipulation to

decide the case. It stated "[the court] is not convinced that it's imperative, and I




       3 Id. (emphasis added).

       4JU

       5 State v. Morqensen, 148 Wn. App. 81, 86, 197 P.3d 715 (2008).

       6 Dye, 178Wn.2dat548.

       7 ]d_. (internal quotation marks omitted).

       *\±

       9 Id.
No. 70303-0-1/4



don't see that it's the crux of the case or that it really aids the jury in maintaining

its direction in addressing the matter before it concerning Mr. Bartels."

       Second, the court believed it was procedurally improper to reread the

stipulation. The court noted that while the parties had filed the stipulation, neither

party either marked it as an exhibit or moved to admit it.

       The trial court properly exercised its discretion for the first reason.

       Bartels was charged with robbery. He argued that his codefendants acted

alone, while the State argued that he was an accomplice in the robbery.

Whether Bartels's codefendants had pleaded guilty had little relevance to the

question the jury needed to answer—whether Bartels had acted as their

accomplice.

       When a court decides whether to grant the jury's request to rehear a piece

of evidence, it must avoid unduly emphasizing that evidence.10 When a jury

hears evidence for a second time late in a trial, it may place undue emphasis on

that evidence.11

       Ifthe trial court had allowed the jury to hear the stipulation again, it could

have risked allowing the jury to place undue emphasis on the stipulation. Given

that the stipulation was not directly relevant to the issues before the jury, it was

proper for the trial court to decline reading the stipulation again. Rereading the

stipulation may have unintentionally signaled to the jury that the stipulation was

an important piece of evidence for them to consider.

       10 CrR 6.15(f)(1).

       11 Morqensen, 148 Wn. App. at 87.
No. 70303-0-1/5



       The court's decision was within "the range of acceptable choices, given

the facts and the applicable legal standard."12 Thus, the trial court did not abuse

its discretion.


       Because the court's first reason for exercising its discretion supports its

decision, we need not address the second.

        Bartels argues that the trial court "deprived the jury of the opportunity to

decide the case based on all the evidence" by failing to reread the stipulation.

This argument fails for two reasons. First, as discussed above, the stipulation

had little, if any, relevance to the question before the jury.

       Second, the court did not refuse to read the stipulation, it merely refused

to read the stipulation again. Bartels does not cite any authority for the

proposition that failing to reread evidence to the jury prevents the jury from

deciding the case based on all of the evidence. Thus, Bartels's argument is

unpersuasive.

                    STATEMENT OF ADDITIONAL GROUNDS

        In his Statement of Additional Grounds, Bartels alleges two errors.

Neither requires reversal.

        First, Bartels argues that there was insufficient evidence to support a

firearm enhancement to his sentence.

        Evidence is sufficient when any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt.13 An appellate court


        12 Dye, 178Wn.2dat548.

        13 State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
No. 70303-0-1/6



considering a sufficiency challenge must defer to the jury's determination as to

the weight and credibility of the evidence.14

         In order to support a firearm enhancement, the jury must find that "the

offender or an accomplice was armed with a firearm."15

         At trial, there was sufficient evidence for a rational trier of fact to find that

either Bartels or his accomplice used a firearm. Specifically, the victim testified

that Bartels's accomplice pointed a gun at him during the robbery and then shot

him. Additionally, the emergency room doctor who treated the victim testified

that the victim had a wound consistent with a gun shot. This evidence was

sufficient for the jury to find beyond a reasonable doubt that the accomplice was

armed with a firearm, supporting imposition of the firearm enhancement by the

court.


         Second, Bartels argues that he received ineffective assistance of counsel

when his attorney agreed to stipulate that Bartels's alleged accomplices had

pleaded guilty.

         To prevail on a claim of ineffective assistance of counsel, a defendant

must show that counsel's performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his trial.16 The

reasonableness inquiry presumes effective representation and requires the

         14 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

         15 RCW 9.94A.533(3).

         16 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).



                                              6
No. 70303-0-1/7



defendant to show the absence of legitimate strategic or tactical reasons for the

challenged conduct.17 If one of the two prongs of the test is absent, we need not

inquire further.18

       Here, Bartels's attorney had a strategic reason for stipulating that Bartels's

alleged accomplices had pleaded guilty. As explained previously in this opinion,

the defense theory of the case was that Bartels's alleged accomplices acted

alone. Bartels's attorney believed that the stipulation would help the jury

understand his theory of the case. Informing the jury that Bartels's codefendants

pleaded guilty was a legitimate strategic decision.

       Accordingly, because Bartels's counsel did not perform deficiently, we

need not address prejudice.

       We affirm the judgment and sentence.

                                                          ^TX.sJ.
                                                          CyJX


WE CONCUR:




       17 McFarland. 127 Wn.2d at 336.

      18 Strickland. 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166
P.3d 726 (2007).



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