                                                                                 FILE
                                                                            COURT OF A PEALSD
                                                                                    DIVISION TI
                                                                           2015 APR - 7 AM 9: 21

                                                                           STATE OF WASHINGTON
                                                                           BY
                                                                                           TY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

 STATE OF WASHINGTON,                                                      No. 45015 -1 - II


                                   Respondent,


        v.



 SHAVON         KEALALANI         GARDNER,       aka              UNPUBLISHED OPINION
 SHA' VON       GARDNER, SHAVON             KEALA
 GARDNER,


                                   Appellant.


       SUTTON, J. —      Shavon Kealalani Gardner appeals her felony convictions for residential

burglary and second degree taking a motor vehicle without permission, and three misdemeanor

convictions for violations of a January 31, 2012 protection order. She argues that ( 1) the trial court

violated her right to a fair trial when it erroneously admitted evidence that Gardner had been

charged with a prior protection order violation; and ( 2) defense counsel provided ineffective


assistance of counsel by failing to move for a mistrial after the jurors heard this evidence. Because

Gardner failed to further object to admission of the audio recording, she failed to preserve this

issue for   review; she also   failed to demonstrate   manifest error   affecting   a constitutional right   for
No. 45015 -1 - II



review under    RAP 2. 5(   a)(   3);    and she failed to show that counsel was ineffective or that she was


prejudiced. Accordingly, we affirm her convictions.

                                                        FACTS


        Curtis Lee Parsons lives with his nine -year -old daughter, J.P., 1 in Vancouver. J.P.' s mother

is Shavon Kealalani Gardner, who had•a long term relationship with Parsons that ended in February

2012.   Earlier     on   January        31,   2012, Parsons obtained a domestic violence protection order


prohibiting Gardner from having contact with Parsons or the minor, J.P., and prohibiting Gardner

from.coming within 500 feet of Parsons' residence.

        On June 26, 2012, Parsons and a co- worker went to a job in White Salmon. Parsons' co-


worker drove, and Parsons left his Ford Focus parked in his driveway, and left the babysitter at his

house to babysit J. P. When the babysitter arrived, his Ford Focus was still parked in his driveway.

At some point the babysitter took a shower and, when she got out of the shower, she discovered

that Parsons'   car was gone.           Gardner took the car without Parsons' permission; his keys typically

were left by the front door.

        Gardner took J. P. to the apartment of David Michael Roby, a mutual friend of hers and

Parsons.   Gardner stated that she was looking for Parsons, but Roby told J.P. to come inside and

directed Gardner to leave. After Gardner threatened to call the police, Roby revealed that he was

aware of the protection order and Gardner immediately left in Parsons' car, leaving J.P. behind.

Roby then contacted Parsons and the police.




1 We use initials for the juveniles' names to protect their confidentiality.



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No. 45015 -1 - II



        Gardner then arrived at the house of Parsons' next -door neighbor, driving Parsons' Ford.

After casual conversation with Parsons' neighbor, Gardner said that she wanted to go next door to

Parsons' house to talk to him.   Gardner walked into the neighbor' s backyard, put a chair against

the fence separating the neighbor' s and Parsons' properties, and climbed over the fence into

Parsons' backyard. About a half hour later, Gardner threw a bag over the fence into the neighbor' s

yard. The neighbor then texted Parsons, who told her that he was calling the police. At some point

Gardner threw another bag over the fence into the neighbor' s yard, climbed back over the fence

herself, and placed the bags in the neighbor' s garage.


        The police arrived at Parsons' house after receiving a call that a burglary was in progress.

Upon arrival, the police found no one inside the house. But in Parsons' backyard, police found a


ladder placed up against the fence and a chair placed directly opposite on the other side of the

fence in the neighbor' s yard. Police then went to the neighbor' s house next door, where they found

Gardner and the neighbor.


        Gardner initially denied going into Parsons' yard or his house, and claimed that she had

been at the neighbor' s house the entire afternoon. After police spoke with the neighbor, Gardner


admitted that she had gone over the back fence into Parsons' yard, but stated that it was only to

check on   her dogs. After police confronted her with the two bags she had carried and left in the


neighbor' s garage, Gardner admitted that she had entered Parsons' house through the back door


and took some property; the police found Parsons' temporary identification, social security card,

and a pocket watch among the items taken. Gardner also admitted to driving Parsons' car but




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No. 45015 -1 - II



claimed that he had given his keys to her. Police then took Gardner into custody for violating the

January 31, 2012 protection order.

               One month later on July 26, Parsons received a postcard from Gardner addressed to " D.

Parsons."         1 Verbatim Report of Proceedings ( VRP) at 89. Parsons has a son whose first initial is

    D"   and last name is Parsons but the content of the postcard related entirely to Curtis Parsons'

relationship        with   Gardner.    The January 31 protection order was still in effect when Parsons

received the postcard.


               The State   charged    Gardner     with   three felonies:   including   residential   burglary, 2 second .

degree taking of a motor vehicle without permission,3 and third degree theft;4 and two

misdemeanor counts of violating the January 31 protection order.5 The State added domestic

violence enhancements to the three felony charges under RCW 9. 41A.535( 3)( h)( ii) and RCW

10. 99. 020.       Based on the July, 26 postcard contact, the State amended the charges to add a sixth

count of protection order violation under RCW 26. 50..110( 1).


               During trial, outside the jury' s presence, Gardner requested an offer of proof regarding the

January 31 protection order underlying the three counts of protection order violations (counts 4, 5

and      6).   In response, the State offered a video recording of the January 31 protection order hearing.

Defense counsel objected that Gardner was wearing jail clothing and that Parsons could be heard



2 Count 1, RCW 9A.52. 025.

3 Count 2, RCW 9A. 56. 075.

4
    Count 3, RCW 9A. 56. 020( 1)(         a), .   050( 1)( a).

5
    Counts 4 & 5, RCW 26. 50. 110( 1).




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No. 45015 -1 - II




in the video recording referring to the charges Gardner faced. Defense counsel did not object to

admission of the protection order, but argued that the audio recording was not relevant and was

prejudicial.     The court ruled that the State could not play the video portion of the recording, and

could play only the limited portion of the audio recording where the judge spoke to Gardner about

the no- contact restrictions. The State, prior to playing the audio, replayed the audio for the judge

and defense counsel to ensure the correct portion was being played and they agreed to the version

to be   played   to the   jury.   Gardner did   not object   further to the limited   portion of   the   audio.   The


audio, played to the jury, included the following statement from the superior court to Gardner

during the January 2012 hearing:

          COURT:]:         The Respondent, that' s you, shall be allowed visitations to be set by
         further Court order. Violation of this order could mean that (unintelligible) further
         charges filed against you, do you understand?
          GARDNER:]           Yes. That means I can' t see my kid.
          COURT:] That' s correct, not without further Court order.


1 VRPat84.


         A jury convicted Gardner of residential burglary, second degree taking of a motor vehicle

without permission, and all three misdemeanor counts of violating the January 31 protection order.

Gardner appealed.6




6 Although Gardner appeals her entire judgment and sentence, she does not specifically address
her   convictions   for   residential   burglary —domestic violence ( count 1) or second degree taking a
motor vehicle without permission —domestic             violence ( count 2).




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No. 45015 -1 - II



                                                    ANALYSIS


           For the first time on appeal, Gardner argues that the trial court erroneously allowed the

jury    to hear   evidence   that she had been previously      charged   for violating   a protection order.   She


argues that this evidence was not relevant or admissible under ER 402 and was more prejudicial


than probative under ER 403, thus warranting reversal of her convictions. 8

           A defendant may challenge an alleged trial court error for the first time on appeal either:

 1)    by demonstrating that the error is a manifest error affecting a constitutional right and is

prejudicial, warranting review under RAP 2. 5( a)( 3), 9 or ( 2) by demonstrating that the trial court

counsel was ineffective for failing to raise the issue below. But because Gardner agreed to playing

the limited portion to the jury and did not further object, we hold that she waived any objection on

appeal and she fails to show that review is warranted under RAP 2. 5( a)( 3).

                               I. ADMISSION OF JANUARY 31 AUDIO RECORDING


           Under RAP 2. 5( a), we generally will not review claims raised for the first time on appeal,

unless an exception can be shown, such as a manifest error affecting a constitutional right. State

v.    Robinson, 171 Wn.2d 292, 304, 253 P. 3d 84 ( 2011),        review denied by State v. Millan, 180 Wn.2d

1003, 321 P. 3d 1207 ( 2014).        Generally evidentiary errors are not of constitutional magnitude. In



7 Gardner does not cite the federal or state constitutional provisions but argues that the erroneous
admission of the evidence requires reversal where the outcome of the trial would have been
materially affected. She further argues that this evidence was not harmless.

8 This argument applies only to the misdemeanor protection order violations, counts 4 -6, not the
felony     convictions   for   burglary (   count   1)   or second degree taking a motor vehicle without
permission ( count 2).


9 State v. King, 167 Wn.2d 324, 329, 219 P. 3d 642 ( 2009).


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No. 45015 -1 - II



re   Pers. Restraint ofDuncan, 167 Wn.2d 398, 408, 219 P. 3d 666 ( 2009); State v. Grier, 168 Wn.


App.    635, 643       n. 16,   278 P. 3d 225 ( 2012), cent. denied, 135 S. Ct. 153 ( 2014).


            At trial, the court agreed with defense counsel to limit the audio recording to only what the

judge told Gardner about the no contact restrictions and the judge' s statement that any further

violations may result in further charges. Defense counsel, after listening to the limited audio, did

not object further.


            Gardner has not argued nor shown that the admission of this evidence is a manifest error


affecting a constitutional right, nor has she shown that she was actually prejudiced by this remark

on    the   audio   recording considering the         evidence as a whole.      Therefore, Gardner has waived this


issue on appeal. RAP. 2. 5( a).


                                          II. EFFECTIVE ASSISTANCE OF COUNSEL


            Gardner argues that defense counsel was ineffective by failing to move for a mistrial.1°

Gardner argues that the initial error, in allowing the jury to hear evidence that she previously

violated a protection order, was compounded by the jury hearing more evidence about this subject

during        Parsons'     testimony.'         We disagree;    Gardner fails to show that defense counsel' s


questioning of Parsons and counsel' s decision not to move for a mistrial amount to deficient

performance and, even if deficient, Gardner fails to show that she was prejudiced.




10 Gardner cites the federal and state constitutions guaranteeing the right to effective
representation.          U. S. CONST.      amend.   VI; WASH. CONST.   art.   1, §   22.


11 Defense counsel asked Parsons if he knew why Gardner' s jewelry was at his house and Parsons
testified, "    Every single thing that she owned when she went to the j ail with the first no- contact
order was          at my house."
                left               1 VRP at 99. Defense counsel then asked Parsons why Gardner had
a    key to   Parsons' home         and   he testified, " Maybe she had it on her possession the first time she got
arrested.       I have   no     idea."   1 VRP at 101 -02.



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No. 45015 -1 - II



         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. State        v.   Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011), cert. denied, 135 S.


Ct. 153 ( 2014).         Representation is deficient if,         after   considering    all   the    circumstances, "     it falls


 below   an objective standard of reasonableness. "'                  Grier, 171 Wn.2d at 33 ( quoting Strickland v.

Washington, 466 U. S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)).                                  Prejudice exists if


there is a reasonable probability that except for counsel' s errors, the result of the proceeding would

have differed.         Grier, 171 Wn.2d at 34 ( citing State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177

 2009)).


         We presume that counsel' s representation was effective, and the defendant has the burden

to   show   that,   based   on   the   record,   there   are no "`   legitimate   strategic or     tactical   reasons '   for the


challenged conduct.          State     v.   Emery,    174 Wn.2d 741, 755, 278 P. 3d 653 ( 2012) (              quoting State v.

McFarland, 127 Wn.2d 322, 336, 899 P. 2d 1251 ( 1995)). "`                        Deficient performance is not shown


by   matters   that go to trial strategy or tactics. "'          State v. Lewis, 156 Wn. App. 230, 242, 233 P. 3d

891 ( 2010) ( internal      quotation marks omitted) (          quoting State v. Cienfuegos, 144 Wn.2d 222, 227,

25 P. 3d 1011 ( 2001)).


           But "[ e]   ven deficient performance by counsel `does not warrant setting aside the judgment

of a criminal       proceeding if the         error   had   no effect on   the judgment. "'          State v. Crawford, 159


Wn.2d 86, 99, 147 P. 3d 1288 ( 2006) ( quoting Strickland, 466 U. S.                          at   691). "   A defendant must


affirmatively prove prejudice, not simply show that `the errors had some conceivable effect on the

outcome. "'      Crawford, 159 Wn.2d at 99 ( quoting Strickland, 466 U.S. at 693).




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No. 45015 -1 - II




          Indoing so, "[ t] he defendant must show that there is a reasonable probability that,
          but for counsel' s unprofessional errors, the result of the proceeding would have
          been different. A reasonable probability is a probability sufficient to undermine
           confidence in the outcome."


Crawford, 159 Wn.2d              at   99 -100 ( alteration in         original) (   quoting Strickland, 466 U.S. at 694).

           Defense counsel' s decision not to move for a mistrial was a tactical decision and may have

been    made     for legitimate           reasons.    Emery,     174 Wn.2d        at   755; Lewis, 156 Wn.       App.    at   242. " A


mistrial should be granted when the defendant has been so prejudiced that nothing short of a new

trial   can [ e] nsure      that the defendant         will    be tried     fairly."   State v. Gamble, 168 Wn.2d 161, 177,


225 P. 3d 973 ( 2010). " The trial              court   has    wide   discretion to     cure   trial irregularities."   State v. Post,


118 Wn. 2d 596, 620, 826 P. 2d 172, 837 P. 2d 599 ( 1992).                              Gardner fails to show any irregularity

in the   proceedings         that   would warrant a mistrial.               Moreover, she fails to show that the trial court


would     have    granted a motion            for    mistrial.   State v. Walters, 162 Wn. App. 74, 81, 255 P. 3d 835

 2011) (   motion      to   suppress); see       State    v.   Nichols, 161 Wn.2d 1, 8, 162 P. 3d 1122 ( 2007) ( motion


to   suppress).      Nor has Gardner shown that defense counsel' s performance was deficient when he

examined Parsons.


           Because Gardner ( 1) failed to further object to the audio recording, she failed to preserve

this issue     for   review; (   2) failed to demonstrate a manifest error affecting a constitutional right for

review under         RAP 2. 5(      a)(   3); and ( 3) failed to show that defense counsel was ineffective, we affirm




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No. 45015 -1 - II




her 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.




 We concur:




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