                                                                                                     FILED
                                                                                           COURT OF APPEALS
                                                                                                   DIVISION II

                                         2MI CEC : 2 AM 8: 57
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          STATE OF WASHINGTON
                                                         DIVISION II
                                                                                           BY

 STATE OF WASHINGTON,                                                                       No. 44467 -4 -II


                                           Respondent,                               UNPUBLISHED OPINION


            v.



 JUSTIN MICHAEL HUBBARD,


                                           Appellant.


          BJORGEN, A. C. J. —            A jury found Justin Michael Hubbard guilty of first degree theft,

second degree possession of stolen property, and unlawful possession of a stolen vehicle. Hubbard

was    tried   with   co- defendant,      Ashley    Burmeister)          Hubbard appeals his convictions, arguing that

the trial   court erred      by denying     his   motion    to   sever     the trials. We disagree and affirm Hubbard' s


convictions.



                                                                 FACTS


            Early in the morning of December 29, 2010, Officer Jeffrey Robillard of the Tacoma Police

Department suspected Hubbard and Burmeister were in possession of a stolen motorcycle and a


stolen trailer. Officer Robillard observed the motorcycle was registered as a Harley Davidson, but

most parts were stamped "                Independence Motorcycle              Company."         Report of Proceedings ( RP)


    Nov. 13, 2012)      at   216. Officer Robillard also noticed the trailer was registered as an old, small,


home -built trailer, but Burmeister' s trailer appeared newer, larger, and was recently repainted. The

motorcycle        and    trailer    were    both     registered       in Burmeister' s       name.       During the ensuing

investigation, Burmeister explained to Detective Kenneth Viehmann that the . motorcycle and


trailer were Hubbard' s, but they were registered in her name because Hubbard' s license was


1
    Burmeister    was    found     not   guilty   and,   therefore,   is   not a   party to this   appeal.
No. 44467 -4 -II



suspended and she was doing him a favor. Hubbard told Detective Viehmann that they bought the

trailer and motorcycle from private sellers and did not know either were stolen.

         The State charged Hubbard with first degree theft, second degree possession of stolen


property, and unlawful possession of stolen vehicle. The State charged Burmeister with two counts

of making false statement or illegal transfers, and possessing a stolen vehicle. Hubbard' s case was

joined   with   Burmeister'   s.   Burmeister' s defense was lack of knowledge, arguing Hubbard asked

her to   register   the vehicles for him because          of   his   suspended   license.     Hubbard asserted general


denial. Prior to trial, Burmeister moved to admit evidence of Hubbard' s license suspensions to


support   her   assertion   that   she registered   the   motorcycle and         trailer to   help   Hubbard.   However,


Burmeister moved to exclude evidence of Hubbard' s electronic home monitoring status, arguing

the evidence concerned prior bad acts that would lead the jury to conclude Burmeister was aware

of   Hubbard'   s criminal   history. The trial court ruled the evidence was admissible so long as the

evidence was properly introduced. The parties agreed to enter a stipulation as to Hubbard' s home

monitoring status.


          The State then moved to admit evidence of a March 2008 incident during which Hubbard

and Burmeister attempted to sell a stolen Mazda truck. Hubbard objected. The trial court allowed

the evidence under ER 404( b) to show absence of mistake or accident, knowledge, and common

scheme or plan. The trial court also made an explicit written finding that the evidence was more

probative    than    prejudicial    because it "   directly goes to the heart of the defenses raised by the

defendants."        Clerk' s Papers ( CP) at 19.




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No 44467 -4 -II



           In addition, the State moved to admit the statements that Hubbard and Burmeister made


during     the investigation      of   the   motorcycle   and   trailer.   After a CrR 3. 5 hearing, the trial court

determined that Hubbard' s and Burmeister' s statements were admissible at trial.


           Hubbard moved to sever the trials arguing that he was prejudiced by a joint trial due to

mutually antagonistic defenses. Hubbard argued that a joint trial was prejudicial because the

evidence of the 2008 incident, his license suspension, and his home monitoring status should not

be   admitted against      him   under   ER 403    and    ER 404( b). The trial court denied Hubbard' s motion


to sever.


           At trial,   evidence   was introduced      consistent with       the trial   court' s orders.   The trial court


gave the following limiting instructions:

                                                    Instruction No. 6
                     You may consider a statement made out of court by one defendant as
           evidence against that defendant, but not as evidence against another defendant.

                                                    Instruction No. 9
                  Certain evidence has been admitted in this case for only a limited purpose.
           This evidence consists of oral testimony and written exhibits of events of March
           22, 2008 regarding a Mazda pickup truck. This evidence may be considered by you
           only for the purpose of determining the knowledge of a defendant. You may not
           consider it for any other purpose.  Any discussion of the evidence during your
            deliberations must be consistent with this limitation.


CP    at   76, 79.     The jury found Hubbard guilty of first degree theft, second degree possession of

stolen property, and unlawful possession of a stolen motor vehicle. Hubbard appeals.

                                                          ANALYSIS


            Hubbard argues that the trial court erred by denying his motion to sever his trial from

Burmeister' s trial. He argues that a joint trial was manifestly prejudicial to him because ( 1) the

State was able to introduce evidence of prior bad acts that would not have been admissible



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No. 44467 -4 -II



against him in a severed trial, and ( 2) he and Burmeister presented mutually antagonistic

defenses. Hubbard, however, has not demonstrated any prejudice resulting from the admission

of the alleged prior bad acts, and he and Burmeister did not present mutually antagonistic

offenses. Therefore, we affirm the trial court.


            CrR 4. 4( c)   governs   the trial    court' s    decision to     sever   trials for     co-   defendants.   The trial


court should sever trials when severance " is deemed appropriate to promote a fair determination

of   the   guilt or   innocence   of a   defendant." CrR 4. 4( c)( 2)( i). We review a trial court' s decision on


a motion for severance for abuse of discretion. State v. Canedo -Astorga, 79 Wn. App. 518, 527,

903 P. 2d 500 ( 1995) ( citing State             v.   Phillips, 108 Wn.2d 627, 640, 741 P. 2d 24 ( 1987)). "                  The


defendant has the burden of demonstrating that a joint trial was so manifestly prejudicial as to

outweigh      the   concern    for judicial economy."         Canedo -Astorga, 79 Wn. App. at 527. The defendant

must show a specific prejudice to meet his burden. Canedo -Astorga, 79 Wn. App. at 527.

                                           I. ADMISSION OF PRIOR BAD ACTS


            Hubbard points to two specific pieces of evidence that he claims would not have been

admissible against         him if the trial     court   had   granted   his   motion    to   sever   trials.   First, he points to


the 2008 incident          involving     the   stolen   Mazda. This     argument       lacks   merit.       The trial court ruled


that the 2008 incident was admissible against both defendants for the purposes of absence of

mistake       or   accident,    knowledge,        and   common        scheme    or    plan.     Accordingly, the evidence

involving the 2008 incident would have been admissible in a separate trial and is not a basis for




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No. 44467 -4 -II



severing the trials.2

          Second, Hubbard points to the evidence regarding his prior license suspensions and his

electronic     home        monitoring   status.     Assuming that evidence of .Hubbard' s prior license

suspensions would not have been admissible in a separate trial, Hubbard fails to demonstrate a


specific prejudice resulting from the admission of his prior license suspensions and monitoring

status.   Evidence of prior bad acts is inadmissible " to prove the character of a person in order to

show action     in conformity therewith."               ER 404( b).    Here, at worst, the evidence of Hubbard' s


 other crimes, wrongs, or acts" demonstrates a propensity to have a suspended license. ER 404(b).

Hubbard was not on trial for having a suspended license and having a suspended license is

unrelated to the crimes with which Hubbard was charged (theft, possession of stolen property, and

possession of a stolen vehicle).          See State v. Acosta, 123 Wn. App. 424, 435, 98 P. 3d 503 ( 2004)

 holding prejudice from evidence that defendant had previously committed the same crimes for
which     he   was    on   trial   outweighed     any   probative     value).   The evidence regarding Hubbard' s

suspended license does not demonstrate a propensity to commit theft or possess stolen property;

therefore, Hubbard has failed to demonstrate specific prejudice resulting from a joint trial in which




2 Based on Hubbard' s assignments of error, it appears he attempts to challenge the trial court' s ER
404( b) ruling. Br. App. at 1 ( " The trial court erred when it concluded in its written Findings of
                           of

Fact and Conclusions of Law that evidence that Justin Hubbard and his co- defendant possessed a
stolen vehicle in 2008 directly goes to the heart of the defenses raised by the defendants. ").
However, in his brief Hubbard fails to offer any argument or authority supporting this assignment
of error. Accordingly, we need not address the issue.         RAP 10. 3( a)( 6). In addition, Hubbard' s
issue is limited to the assertion that the trial court erred because its written order conflicts with its
oral ruling. Our use of a trial court' s oral ruling is limited to interpreting an ambiguous written

ruling; when a trial court' s written ruling is unambiguous, we may not turn to the trial court' s oral
           State     v.   Hescock, 98 Wn.    App.        600, 605 -06, 989 P. 2d 1251 ( 1999).   Because the trial
ruling.
 court' s written order regarding the admissibility of the 2008 incident is unambiguous, we do not
 consider the trial court' s oral ruling.
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No. 44467 -4 -II



his co- defendant Burmeister was permitted to introduce evidence that Hubbard' s license was

suspended at the time she registered the vehicles.


         Hubbard also contends that the admission of evidence he was on electronic home


monitoring       at   the time of the     alleged offense was so prejudicial         it   warranted a separate   trial.   We


disagree.      Electronic home monitoring status, especially related to the license suspensions, does

not demonstrate a propensity for committing the offenses with which Hubbard was charged.

Accordingly, any prejudice resulting from admission of evidence establishing Hubbard was on

electronic home monitoring was outweighed by the need for judicial economy.

                                        II. MUTUALLY ANTAGONISTIC DEFENSES


             Hubbard also argues that a joint trial was manifestly prejudicial because he and Burmeister

presented      mutually      antagonistic       defenses.      Mutually antagonistic defenses " may on occasion be

sufficient to support a motion for severance, but this is a factual question which must be proved

by the   defendant. It does          not represent        sufficient   grounds as a matter of   law."   State v. Grisby, 97

Wn.2d 493, 508, 647 P. 2d 6 ( 1982). "                   We rarely overturn a trial court' s denial of a motion to sever

on the basis of mutually exclusive defenses, even when one defendant tries to blame another."

State   v.   Johnson, 147 Wn.           App.    276, 285, 194 P. 3d 1009 ( 2008). As we have explained:


              The     mere   existence     of     antagonism      between defenses ` or the desire of one
             defendant to     exculpate     himself        by inculpating   a codefendant. . .   is insufficient to
              compel separate       trials]."     In re Personal Restraint ofDavis, 152 Wn.2d 647, 712,
             101 P. 3d 1 ( 2004) ( quoting         United States v. Throckmorton, 87 F. 3d 1069, 1072 ( 9th
             Cir. 1996)).      Rather, the defendant            must "`   demonstrate[]    that the conflict is so
             prejudicial     that . .      the jury will unjustifiably infer that this conflict alone
             demonstrates that both         are guilty. "' Grisby, 97 Wn.2d at 508, 647 P. 2d 6 ( quoting

             United States     v.   Davis, 623 F. 2d 188, 194 -95 ( 1st Cir. 1980)).           For defenses to be
             irreconcilable, they must be " mutually exclusive to the extent that one [ defense]
             must     be believed if the       other [   defense] is disbelieved."   State v. McKinzy, 72 Wn.
             App. 85, 90, 863 P.2d 594 ( 1993).


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No. 44467 -4 -II



Johnson, 147 Wn. App. at 284 -85 ( alterations in original).

          Here,. Hubbard denied any involvement in the theft or any knowledge the property was

stolen. Burmeister claimed that she did not know the vehicles were stolen and pointed to Hubbard


as the one who stole the vehicles. These defenses are not mutually antagonistic. It is possible for .

the jury to determine that neither defendant knew that the vehicles were stolen. More to the point,

believing Burmeister' s defense of lack of knowledge did not require the jury to find that Hubbard

stole   the   vehicles.   Accordingly, Hubbard has failed to demonstrate specific prejudice resulting

from mutually antagonistic defenses.

          Hubbard has failed to    show   that   manifest prejudice resulted    from   a   joint trial. Therefore,


he has not met his burden to show that the trial court abused its discretion by denying his motion

to sever the trials. We affirm Hubbard' s convictions.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.



                                                                                       14:




                                                                   N, A.C. J.
                                                                                10 *
We concur:




        amoteXi--
W JRSWICK, J.




LEt, J.




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