IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,
                                                      No. 78727-6-I
                       Appellant,
                                                      DIVISION ONE
                v.
                                                      UNPUBLISHED OPINION
 DAVID CORNELIUS CONYERS,

                       Respondent.


       APPELWICK, J. — Conyers appeals six convictions for robbery in the second

degree. He makes several arguments. First, the trial court erred in denying his

motion to sever the counts. Second, the trial court erred in admitting his ORCA1

card records because the warrant to seize them was deficient.                 Third, the

prosecutor improperly coached a witness to identify him at trial. Fourth, the trial

court erred in allowing the record of when he signed in and out of his work release

housing. Fifth, the trial court erred in allowing improper opinion testimony from

various witnesses. Sixth, that the cumulative error doctrine entitles him to a new

trial. Seventh, a change in the law removing second degree robbery as a “strike”

should apply to his sentencing. Eighth, that his life sentence constitutes cruel and

unusual punishment. He also argues that the trial court displayed predetermined

bias which deprived him of a fair trial and that the trial court improperly allowed

testimony of Shae-Anne Mehus and Robert Zarate. We affirm.


       The ORCA card (One Regional Card for All) is a contactless, stored-value
       1

smart card system for public transit in the Puget Sound region of Washington.


  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 78727-6-I/2


                                     FACTS

       On July 14, 1995, David Conyers was sentenced to life in prison without the

possibility of parole.   He was sentenced as a persistent offender after being

convicted of his sixth count of robbery in the second degree seven days earlier.

The Governor conditionally commuted his sentence on December 1, 2015.

Conyers was released from prison into work release on December 7, 2016. He

was employed at United Recycling in Seattle.

       From February to March 2017, a series of robberies were committed in

Seattle. The robberies shared several similarities.

       On February 6, 2017, a man in construction gear, a hard hat, and dust mask

walked into Pike Street Grocery in Capitol Hill. He approached the clerk, who was

alone in the store, and demanded all the money in the register. He was adamant

but soft spoken and had his hand in the pocket of the hoodie he was wearing under

his construction gear. Under the impression that the robber had a gun in his

pocket, the clerk gave the robber the money in the register. The robber took the

money and walked out.

       Seven days later, on February 13, 2017, a man in construction gear, a hard

hat, and a mask entered a Bartell Drugstore in Wallingford. He approached the

clerk and calmly told her, “I have a gun,” and gestured to his belt area. He then

said, “I have a gun, don’t make a scene, give me the money, give me all the

money.” The clerk complied, the robber took the money, said, “[T]hank you,” and

left. There was another employee in the store at the time, but that employee was

distracted and did not notice the robbery taking place.


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No. 78727-6-I/3


       Seven days later, on February 20, 2017, a man in mechanic coveralls and

a mask walked into a Rite Aid in Capitol Hill. He approached the lone clerk and

very quietly told the clerk he wanted cash and that he had a gun. The clerk

complied. The robber took the money, told the clerk not to do anything, and walked

out of the store.

       Seven days later, on February 27, 2017, a man in a jacket and hard hat

walked into a Rite Aid in downtown Seattle. He approached the clerk and quietly

said, “[G]ive me your money.” The clerk, initially not understanding, said, “[W]hat

money?” The robber leaned forward, “popped his eyes” and said again, “Give me

the money.” The clerk complied. The robber took the money and walked out of

the store. The clerk and her manager went out of the store and observed the

robber get on a bus at a stop about two doors down from the store.

       Two days later, on March 1, 2017, a man in a hard hat and surgical mask

walked into a Bartell Drugstore in lower Queen Anne. He approached the lone

clerk at the register and quietly said, “[G]ive me the money.” Unable to understand

what the robber said, the clerk replied, “[W]hat?” The robber quietly repeated his

demand. The clerk noticed that the robber had his right hand in his pocket, and

later surmised that he may have been attempting to indicate that he had a gun.

The clerk gave the robber the money in the register. The robber took the money

and walked out of the store.

       The next day, March 2, 2017, a man in a hard hat, and a surgical mask

entered the DeLaurenti Deli in Pike Place Market. He approached the clerk at the

register, indicated that he had a gun, and quietly said, “[G]ive me the money.” The


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No. 78727-6-I/4


clerk initially could not understand the robber and asked him to repeat himself,

which the robber did. The clerk asked the robber how much he wanted, and the

robber responded that he wanted $100. The clerk responded that he only had

$50, so the robber told her to give him that.

       As the clerk was counting out the money, another customer approached the

counter. The customer observed the clerk appeared to be scared and that his

hands were shaking. The customer asked the clerk if he was ok. The clerk did

not respond. The robber then said words to the effect of he wanted his change.

The clerk handed the robber money from the register. Surmising that a robbery

was taking place, the customer reached out and grabbed the money that the clerk

had handed to the robber. The robber yanked the money away and left the store.

The customer pursued the robber into the market, followed him for some time, until

the robber turned around and lunged at him. The customer “back[ed] off” and the

robber turned around and headed south down First Avenue.

       A camera recorded an image of the robber with his mask pulled down as he

exited the DeLaurenti Deli. In an effort to find the culprit, police released this photo

to the media to air on local news. Police dubbed the robber the “Bob the Builder

Bandit” to generate more attention and increase the likelihood of an identification.

An employee at United Recycling in Seattle approached the general manager,

Brian Moody, and brought the image to his attention. After viewing the image for

himself, Moody contacted the police and informed them that he believed that one

of his employees was the Bob the Builder Bandit.




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No. 78727-6-I/5


      Detectives went to United Recycling and spoke to Moody. He confirmed

his identification to them, saying he was 98 percent sure that the man in the image

was Conyers. Employees at United Recycling are provided with construction gear,

hard hats, and dust masks.

      Police arrested Conyers at United Recycling that day. During the search

incident to his arrest, officers recovered an ORCA transit pass. They obtained his

timecards from Conyers’s work and determined that he was absent, had clocked

in after the time of the robbery for that day, or had not clocked out on the days of

the robberies. And, they obtained Conyers’s sign in and sign out records from

Bishop Lewis House, his work release housing. They also obtained a warrant for

transaction records associated with his ORCA card, which Conyers now

challenges.

      The State charged Conyers with six counts of robbery in the second degree.

Conyers moved to sever the counts. The trial court denied that motion. Conyers

also moved to suppress the transaction history of his ORCA card. The trial court

denied that motion. Conyers moved to suppress evidence of his sign in and sign

out records from Bishop Lewis House. The trial court denied that motion.

      Conyers was found guilty as charged. The court sentenced him to life in

prison pursuant to the Persistent Offender Accountability Act (POAA).         RCW

9.94A.570. After his sentencing, the legislature amended the POAA to remove

robbery in the second degree from the list of “strike” offenses used to determine if

a person is a persistent offender. LAWS OF 2019, ch. 187 § 1(33)(o).

      Conyers appeals.


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No. 78727-6-I/6


                                    DISCUSSION

       Conyers makes several arguments. First, the trial court erred in denying

his motion to sever the counts against him. Second, the search warrant for his

ORCA card records lacked probable cause. Third, the court erred in admitting

evidence related to his work release facility, Bishop Lewis House. Fourth, the

prosecutor committed misconduct by coaching a witness. Fifth, the trial court

improperly allowed lay witness opinion testimony and counsel was ineffective for

failing to object. Sixth, Conyers makes two arguments in a statement of additional

grounds (SAG): (a) the trial judge’s demonstrated bias against him deprived him

of a fair trial, and (b) the trial court erred in allowing testimony of Mehus and Zarate.

Seventh the cumulative error doctrine entitles him to a new trial. Eighth, he should

be resentenced because the legislature amended the law such that robbery in the

second degree no longer constitutes a “strike” for determining whether someone

is a persistent offender. Last, he claims his mandatory life sentence constitutes

cruel and unusual punishment.

    I. Severance

       Conyers argues that the trial court erred in denying his motion to sever the

six counts against him for trial. Because Conyers did not renew his motion to sever

the charges before or at the close of evidence, his claim is waived. CrR 4.4(a)(2).

He nonetheless attempts to seek review either through this court’s discretion, or

by claiming ineffective assistance of counsel.




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No. 78727-6-I/7


         A. Waiver

         A defendant’s motion for severance of charges may be made before trial.

CrR 4.4(a)(1). If that motion is overruled, they must renew the motion before or at

the close of the evidence, or severance is waived.        CrR 4.4(a)(2).   Conyers

concedes that he did not renew his severance motion before or at the close of

evidence.

         Conyers nevertheless urges us to exercise discretion to reach the merits of

the issue.2 He argues that the issues of joinder and severance were conflated

below. Because an objection to joinder need not be renewed in the same way as

a motion for severance, it would be preserved for review. See CrR 4.3; State v.

Bryant, 89 Wn. App. 857, 864-65, 950 P.2d 1004 (1998).

         But, there were no joinder issues in this case. The state brought multiple

charges in a single charging document. It did not make a motion to join the

charges. In such situations, a motion to sever is the defendant’s sole remedy.

State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). The rule is clear that

a motion for severance must be renewed before or at the close of the evidence or

it is waived. CrR 4.4(a)(2). Conyers’s conflation of the two concepts is without

merit.

         Conyers next urges the court to exercise its discretion because he

characterizes failure to renew the motion to sever as a minor technical error. He

argues that the issue was raised pretrial and the State had an opportunity to

         2
         RAP 2.5(a) provides that an appellate court may refuse to review any claim
of error which was not raised in the trial. However, the rule never operates as an
absolute bar to review. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).


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No. 78727-6-I/8


respond. Because nothing happened that would change the analysis, renewal of

the motion would serve no purpose and so should not serve as a waiver of the

issue.    But, CrR 4.4(a)(2) clearly states that party must renew its motion for

severance before or at the close of the evidence and does not contain an exception

for futility. We decline Conyers’s invitation to disregard his waiver of the issue and

enforce the rule as written.

         B. Ineffective Assistance of Counsel

         Conyers next seeks review of his severance claim on the ground that his

counsel was ineffective in failing to renew the motion before the close of the

evidence.

         To establish ineffective assistance of counsel, Conyers must show that his

counsel’s performance fell below an objective standard of reasonableness and that

he was prejudiced by the performance. State v. Sutherby, 165 Wn.2d 870, 883,

204 P.3d 916 (2009). Counsel is presumed to be effective. Id. It is Conyers

burden to show that, but for counsel’s unprofessional errors, there is a reasonable

probability that the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We

presume, absent a challenge to the sufficiency of the evidence, the judge and jury

acted according to law. Id.

         As a matter of law—Conyers cannot establish prejudice. In discussing the

showing of prejudice necessary to a successful ineffective assistance claim,




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No. 78727-6-I/9


Justice O’Connor, writing for the Court, set forth several crucial requirements and

limitations.

       Even if a defendant shows that particular errors of counsel were
       unreasonable . . . the defendant must show that they actually had an
       adverse effect on the defense.

              It is not enough for the defendant to show that the errors had
       some conceivable effect on the outcome of the proceeding. Virtually
       every act or omission of counsel would meet that test, and not every
       error that conceivably could have influenced the outcome
       undermines the reliability of the result of the proceeding.

Strickland, 466 U.S. at 693 (citation omitted).

       Accordingly,

       [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.

               In making the determination whether the specified errors
       resulted in the required prejudice, a court should presume, absent
       challenge to the judgment on grounds of evidentiary insufficiency,
       that the judge or jury acted according to law. An assessment of the
       likelihood of a result more favorable to the defendant must exclude
       the possibility of arbitrariness, whimsy, caprice, “nullification,” and
       the like. A defendant has no entitlement to the luck of a lawless
       decisionmaker, even if a lawless decision cannot be reviewed. The
       assessment of prejudice should proceed on the assumption that the
       decisionmaker is reasonably, conscientiously, and impartially
       applying the standards that govern the decision.

Strickland, 466 U.S. at 694-95.

       Finally, Justice O’Connor observed that:

              Although we have discussed the performance component of
       an ineffectiveness claim prior to the prejudice component, there is no
       reason for a court deciding an ineffective assistance claim to
       approach the inquiry in the same order or even to address both
       components of the inquiry if the defendant makes an insufficient
       showing on one. In particular, a court need not determine whether
       counsel’s performance was deficient before examining the prejudice


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No. 78727-6-I/10


       suffered by the defendant as a result of the alleged deficiencies. The
       object of an ineffectiveness claim is not to grade counsel’s
       performance. If it is easier to dispose of an ineffectiveness claim on
       the ground of lack of sufficient prejudice, which we expect will often
       be so, that course should be followed.

Strickland, 466 U.S. at 697.

       Severance exists to address the danger that a jury might wrongly consider

evidence, admitted on one count, to the detriment of the defendant on a different

count. On direct appeal from a trial judge’s denial of a severance motion, we

entertain the possibility that a jury might do so even if it was instructed not to do

so. See State v. Bythrow, 114 Wn.2d 713, 721, 790 P.2d 154 (1990) (concern with

multiple counts is whether the jury can be “expected to compartmentalize the

evidence”); State v. Philips, 108 Wn.2d 627, 641, 741 P.2d 24 (1987) (“[T]he

verdicts show that the jury in fact did compartmentalize the evidence.”). Indeed, it

is the possibility of such “residual prejudice” that is to be balanced against the need

for judicial economy in deciding whether a motion to sever is meritorious. State v.

Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).

       When the claim is one of ineffective assistance of counsel, however,

Strickland establishes a conclusive presumption that the jury followed its

instructions and properly applied the law. See 466 U.S. at 694 (“In making the

determination whether the specified errors resulted in the required prejudice, a

court should presume . . . that the judge or jury acted according to law.”); 466 U.S.

at 695 (“The assessment of prejudice should proceed on the assumption that the

decisionmaker is reasonably, conscientiously, and impartially applying the




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No. 78727-6-I/11


standards that govern the decision.”); accord, State v. Grier, 171 Wn.2d 17, 41-44,

246 P.3d 1260 (2011).

       Here, the jury was instructed: “A separate crime is charged in each count.

You must decide each count separately. Your verdict on one count should not

control your verdict on any other count.” Instruction 9.

       Pursuant to Strickland, the jury is conclusively presumed to have followed

this instruction and not used any evidence to convict on a count on which that

evidence was not admissible. Thus, Conyers cannot, as a matter of law, establish

prejudice from the denial of the motion to sever or from his attorney’s waiver of the

ability to contest that ruling on appeal.

       Because the jury is conclusively presumed to have followed its instructions

and properly applied the law, Conyers’ ineffective assistance of counsel claim fails.

   II. ORCA Records

       Conyers argues that the warrant to seize his ORCA card records was not

supported by probable cause. Specifically, he argues that the warrant lacked a

nexus between the robberies and his ORCA card records.

       A search warrant may be issued only upon a determination of probable

cause. State v. Martinez, 2 Wn. App. 2d 55, 68, 408 P.3d 721, review denied, 190

Wn.2d 1028, 421 P.3d 458 (2018). Probable cause requires a nexus between

criminal activity and the item to be seized. State v. Thein, 138 Wn.2d 133, 140,

977 P.2d 582 (1999). The decision by a magistrate to issue a warrant is reviewed

for abuse of discretion. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002).

However, we review the trial court’s determination that the warrant was supported


                                            11
No. 78727-6-I/12


by probable cause de novo. Martinez, 2 Wn. App. 2d at 66. We review search

warrants in a common sense, practical manner, rather than in a hyper technical

sense. State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997). Doubts as

to the existence of probable cause are generally resolved in favor of issuing the

search warrant. Vickers, 148 Wn.2d at 108-09.

       The affidavit for search warrant indicates that Conyers’s ORCA card was

found on his person during the search incident to his arrest. It also recounted the

facts of each robbery including their time and location. The affidavit indicates that

the affiant compared Conyers’s driver’s license photo with a surveillance photo of

the robber’s face and found a “compelling likeness.”         It also indicates that

Conyers’s manager at United Recycling identified the suspect in the surveillance

photo. The affidavit requested ORCA card records only for the date range of the

robberies.

       The affidavit does not proffer evidence that the suspect used public transit

in the commission of the robberies. However, the affidavit outlined sufficient

evidence to establish probable cause to believe that Conyers committed at least

the DeLaurenti robbery. The affidavit included the affiant’s own conclusion that

there was a “compelling likeness” between the man in the DeLaurenti photo and

Conyers. It also included that Conyers’s manager had identified him as the man

in the DeLaurenti photo as well. The affidavit included similarities between the

robberies, including the use of construction gear and similar demeanor in all

robberies that created a strong inference that he committed the others as well.

That the ORCA card was found on Conyers’s person during the search incident to


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No. 78727-6-I/13


his arrest creates a commonsense presumption that he uses the card for

transportation because ORCA cards must be purchased and they serve no other

purpose. That Conyers purposefully acquired the card and carried it indicates his

use and reliance on the card for transportation. The affidavit indicates that all the

robberies occurred in the city of Seattle and therefore they were accessible by

Seattle public transit.     Common sense holds that it is reasonably likely that

evidence pertaining to the robberies, i.e., whether Conyers had used public transit

to get to the vicinity of those robberies at the time they occurred, would be found

in his ORCA card records.

       Conyers seeks to compare this case to State v. Jackson, 150 Wn.2d 251,

76 P.3d 217 (2003). He claims the facts are similar in that police in that case also

sought to track a defendant’s movements. In that case, police investigating the

disappearance of Jackson’s daughter obtained warrants authorizing the

installation and use of global positioning system devices on his vehicles. Id. at

257. Police theorized that Jackson had hastily buried his daughter’s body or would

have some other reason to return to the location of her body. Id. at 221. Our

Supreme Court upheld the warrant because a thorough search of the area around

the defendant’s house had turned up no sign of the daughter, so it was reasonable

to infer that Jackson had used a vehicle to transport his daughter to another

location. Id. at 265. It was therefore a reasonable inference that Jackson might

use a vehicle to return to her location, either because she was still alive, or because

there was limited time to bury her such that he would need to return to the

gravesite. Id. at 266-67.


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No. 78727-6-I/14


       Conyers claims these facts are much more specific than the “bald request

to track location” present in his case. But, the fact that the Jackson warrant

application had more specificity, does not address whether the warrant application

here had too little specificity.

       We find the warrant for Conyers’s ORCA card records was supported by

probable cause.

   III. Bishop Lewis House

       Conyers objects to the trial court’s admission of evidence of the logbook

and facility rules of Bishop Lewis House. He claims the evidence was unfairly

prejudicial under ER 403 and 404(b). Specifically, he is concerned that the jury

would infer Conyers’s criminal history because he was staying at Bishop Lewis

House.    We review decisions on the admissibility of evidence for abuse of

discretion. State v. Giles, 196 Wn. App. 745, 756, 385 P.3d 204 (2016).

       Only relevant evidence is admissible at trial. ER 402. Evidence is relevant

if it is probative of a material fact. Giles, 196 Wn. App at 757. A fact is material if

it is of consequence in the context of other facts and the applicable standard of

law. Id. It is probative if it tends to prove or disprove a fact. Id. ER 403 allows

that relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.           And, ER 404(b) prohibits the

introduction of character evidence to prove the defendant acted in conformity

therewith.

       Here, Bishop Lewis House maintained a logbook in which residents were

required to sign in and out as they left or arrived at the facility. The trial court found


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this evidence highly probative because it provided circumstantial evidence of

Conyers’s location during the robberies. The trial court nevertheless recognized

the prejudicial nature of Bishop Lewis House being a work release facility

supervised by the Department of Corrections (DOC). The court therefore excluded

all references to the DOC or Bishop Lewis House as a work release facility,

because then the jury could think the facility was a treatment facility, low income

housing project, or shelter. Conyers argues this was insufficient, because any

reference to the fact that residents were not allowed to leave without signing out

would imply they were being closely monitored.         He further argues that the

evidence was minimally probative because the same information was available by

simply introducing Conyers’s timesheets from work.

       Contrary to Conyers’s argument, the evidence is highly probative

circumstantial evidence of his location during the robberies. The value of this

circumstantial evidence comes from the State’s ability to combine it with other

circumstantial evidence, like Conyers’s timesheets from work. These two pieces

of evidence are not interchangeable without the assumption that when Conyers is

not at work, he is at Bishop Lewis. This is, of course, not what the State is seeking

to prove. The State seeks to prove that Conyers was not at work or Bishop Lewis

House, and therefore could have been the person who committed the robberies.

This requires both the Bishop Lewis logbook and Conyers’s work timesheets. And,

while there is some danger of unfair prejudice, that danger must substantially

outweigh the probative value of the evidence. ER 403. Here, the trial court

endeavored to sanitize the record by removing references to DOC or Bishop Lewis


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No. 78727-6-I/16


House as a work release facility. This minimized the risk of unfair prejudice to the

point that it did not substantially outweigh the significant probative value of the

evidence. Its decision to admit the evidence with conditions to minimize the risk

that the jury would infer Conyers’s criminal history was not manifestly

unreasonable.

       The trial court did not abuse its discretion in admitting information relating

to Bishop Lewis House.

   IV. Witness Coaching

       Conyers claims the prosecutor impermissibly coached a witness to identify

him during trial.   He did not object to this alleged impropriety at trial.       He

nevertheless seeks review because the prosecutor’s conduct was so flagrant and

ill-intentioned that no curative instruction could have erased the prejudice. In the

alternative, he suggests trial counsel was ineffective for failing to object. Because

we find that the prosecutor did not act improperly, we reject both arguments.

       Counsel is not prohibited from consulting with his or her witness during trial.

See State v. Delarosa-Flores, 59 Wn. App. 514, 516, 799 P.2d 736 (1990).

However, the State is not permitted to urge a witness to create testimony. State

v. McCreven, 170 Wn. App. 444, 475, 284 P.3d 793 (2012). Generally, the party

alleging prosecutorial misconduct bears the burden of showing the challenged

conduct was improper. See State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653

(2012).




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No. 78727-6-I/17


       Here, Conyers’s manager, Brian Moody, was initially unable to identify

Conyers in the courtroom. After speaking to Moody at a later recess, counsel

elicited the following testimony:

       Q     Before the jury came out, you were looking at this individual
       dressed in the suit here (indicating) with the pattern tie, right?

       A      Yes.

       Q      And then you also, when I was sitting over at counsel table,
       then you looked at me, right? Is that a yes?

       A      Yes.

              MR. CONROY: That’s leading as well.

              THE COURT: It’s foundation, counsel.

       Q      (BY MR. GAUEN) And then did I come up and talk to you
       right here?

       A      Yes.

       Q      And did I ask you if you recognized anybody?

              MR. CONROY: Now, now, we’re well beyond foundation.
       That is leading.

              THE COURT: It’s leading. Ask it in a nonleading fashion.

       Q      (BY MR. GAUEN) What did I talk to you about?

       A      You asked me if I recognized Mr. Conyers now.

       Q      And what did you say?

       A      I said yes.

       Conyers claims the testimony above shows that the prosecutor improperly

coached Moody during the recess. The State argues that the prosecutor merely

clarified Moody’s nonverbal cues during recess that he had recognized Conyers

by asking if he “recognized Conyers now.”



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No. 78727-6-I/18


       Conyers has not met his burden to establish that the prosecutor’s conduct

was improper. He seeks to differentiate this interaction from Delarosa-Flores, 59

Wn. App.at 516, where counsel utilized a recess to refresh a witness’s memory

with a prior statement. This is different, he says, because counsel’s interaction

here was a “purposeful interaction” that “coaxed Moody into responding

affirmatively.” Refreshing a witness’s recollection is also a “purposeful interaction”

that encourages a witness to alter testimony.          The only difference is that a

refreshed witness is given stimuli in the form of prior statements to influence their

testimony, then asked if their recollection is refreshed. ER 612. Here, counsel

skipped step one and proceeded right to step two. That is, he asked the witness

if his recollection was refreshed without giving him any stimuli to influence that

recollection. If it is proper to ask a witness if they are refreshed after showing them

a previous statement, it is certainly proper to ask if their recollection is refreshed

without seeking to influence their testimony at all.

       We find that the prosecutor did not act improperly.

   V. Opinion Testimony

       Conyers argues that the trial court erred in allowing improper opinion

evidence that invaded the province of the jury.          Specifically, he claims that

detectives’ opinions on the similarity of Conyers’s appearance and clothing to

images from the robbery was improper because these detectives were in no better

position than the jury to determine such similarities. Trial counsel objected only

once on the basis of improper opinion testimony, which was overruled. Conyers

seeks review of the instances where he did not object on the theory that counsel


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No. 78727-6-I/19


was ineffective for failing to do so. We review the trial court’s evidentiary rulings

for abuse of discretion. Stenson, 132 Wn.2dat 701. These decisions will not be

reversed unless manifestly unreasonable. Id.

       A lay witness may give opinion testimony when it is (1) rationally based on

the perception of the witness, and (2) helpful to a clear understanding of his

testimony or the determination of a fact at issue. State v. Hardy, 76 Wn. App. 188,

190, 884 P.2d 8 (1994). A lay witness may give an opinion concerning the identity

of a person depicted in a surveillance photograph if there is some basis for

concluding that the witness is more likely to correctly identify the defendant from

the photograph than is the jury. Id.

       Here, the trial court ruled that it would allow testimony concerning

similarities between Conyers and clothing in his possession and the images from

surveillance. However, it would not allow testimony that they were the same. The

State contends the former is helpful to the jury because it helped to focus its

attention on perceived similarities. This was helpful because of the sheer volume

of the evidence that the jury was being asked to consider. Conyers counters that

this is not helpful to the jury because the detectives were in no better position to

assess similarities than the jury.

       The trial court’s distinction between similarities and an ultimate conclusion

of identity is not manifestly unreasonable.        The trial court did not allow the

detectives to testify as to the ultimate conclusion of the identity of the person in the

photographs, instead leaving that determination to the jury. It cannot be said that




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No. 78727-6-I/20


directing the jury’s attention to the similarities that the witness identified was not

helpful to the jury’s own determination of identity.

       The trial court’s decision is therefore not manifestly unreasonable and not

an abuse of discretion.

       In order to succeed on an ineffective assistance of counsel claim, Conyers

must show deficient performance by his counsel and that there is a reasonable

probability that the result of the proceeding would have been different but for that

performance. Sutherby, 165 Wn.2d at 883; Strickland, 466 U.S. at 694. The trial

court outlined its reasoning on this issue when Conyers objected to testimony

about similarities. We have no reason to believe that the trial court would have

ruled differently had Conyers repeated this objection to later instances of testimony

about similarities. Conyers does not demonstrate that the result of the proceeding

would have been different. The initial objection preserved the issue for appeal.

       We reject Conyers’s claim for ineffective assistance of counsel.

   VI. Statement of Additional Grounds

       Conyers makes two arguments in a SAG: that the judge was biased against

him, and that the trail court improperly allowed testimony of Mehus and Zarate.

       A. Judicial Bias

       Conyers claims the judge declared a predetermined bias against him in the

proceeding. The appearance of fairness requires that a judge must appear to be

impartial. State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992).

However, a party seeking to invoke the doctrine must show evidence of actual or

potential bias. See Id. at 619. Pursuant to the doctrine, a judicial proceeding is


                                             20
No. 78727-6-I/21


valid if a reasonably prudent, disinterested observer would conclude that the

parties received a fair, neutral, and impartial hearing. State v. Solis-Diaz, 187

Wn.2d 535, 540, 387 P.3d 703 (2017)

       Conyers points to the following comments by the judge: “Mr. Conyers was

observed wearing construction clothing, particularly a dark colored backpack. And

in five of the six robberies, he was wearing an orange hard hat. And in all the

robberies, he was wearing a surgical mask.” He further takes issue with the

comment, “And also the, essentially the behavior of Mr. Conyers. He was very,

very polite during these robberies.” These comments by the judge occurred during

her oral ruling on Conyers’s motion to sever and not in the presence of the jury.

       Conyers appears to argue that these comments indicate that the trial judge

had predetermined that he was the perpetrator of the robberies and therefore was

biased against him. He cites no case where the use of a defendant’s name to refer

to the perpetrator of the charged crime was considered evidence of bias. He points

to no other evidence that the judge possessed any bias. A reasonable observer

would conclude that the judge committed a minor error in language while

comparing the facts of each charge and was not biased against Conyers.

       We therefore reject Conyers judicial bias claim.

       B. Testimony of Mehus and Zarate

       Conyers claims that the trial court erred in allowing prejudicial testimony of

Department of Corrections Officers Mehus and Zarate. He points to the fact that

the State originally stated it would have very few questions for them, but later asked

over 80 questions. He says many of the questions were “unfairly prejudicial.” He


                                             21
No. 78727-6-I/22


does not say how they are prejudicial. We review the trial court’s evidentiary

rulings for abuse of discretion. Stenson, 132 Wn.2d at 701.

         The dispute about these officers’ testimony at trial surrounded their status

as DOC employees.          The trial court addressed this issue by prohibiting any

reference to their employment at DOC and by having them referred to as “case

managers” rather than corrections officers. Similar to the sanitization of the record

related to Bishop Lewis House, this decision was not manifestly unreasonable and

therefore was within the trial court’s discretion. Conyers cites no case where

allowing a witness to answer more questions than the State originally anticipated

asking is prejudicial.

         We therefore reject Conyers’s claim that Mehus and Zarate should not have

been allowed to testify.

 VII. Cumulative Error

         Conyers claims that the cumulative error violated his due process right to a

fair trial. A defendant may be entitled to a new trial when errors, even though

individually not reversible error, cumulatively produce an unfair trial. See State v.

Coe 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Because we find no errors, the

doctrine is inapplicable here. We therefore reject Conyers’s cumulative error

claim.

 VIII. Statutory Sentencing Amendments

         Conyers claims he is entitled to resentencing because the legislature

removed robbery in the second degree from the list of “strike” offenses after he

was sentenced. Conyers was sentenced to life in prison pursuant to the POAA.


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No. 78727-6-I/23


The POAA mandates a life sentence without the possibility of parole for persistent

offenders. RCW 9.94A.570. A persistent offender is a person convicted of a most

serious offense for the third time. RCW 9.94A.030(38). Most serious offenses are

identified in RCW 9.9A.030(33). At the time of his conviction, robbery in the second

degree was considered a most serious offense. Former RCW 9.94A.030(33)(o)

(LAWS OF 2018, ch. 166 § 3). However, the legislature has removed it from the list

of most serious offenses, effective July 28, 2019. RCW 9.94A.030(33) (LAWS OF

2019, ch. 187 § 1). Conyers’ prior adult criminal history at the time of sentencing

consisted of six convictions for robbery in the second degree. Conyers argues

either that the change in the law should be applied prospectively because his case

is on appeal, or in the alternative, that the law should be applied retroactively to

his case.

       Since this case was heard, these arguments have been rejected in two

cases in our court. State v. Molia, ___ Wn. App. 2d ___, 460 P.2d 1086, 1090

(2020); State v. Jenks, 12 Wn. App. 2d 588, 595,-597, 459 P.2d 389 (2020). We

follow those cases and reject Conyers’s argument.

 IX.   Cruel and Unusual Punishment

       Conyers argues that his mandatory life sentence constitutes cruel and

unusual punishment. He argues both that his sentence is grossly disproportionate

to his crime and it does not allow a sentencing court to take youthfulness into

account.




                                            23
No. 78727-6-I/24


       A. Proportionality

       Conyers argues that a mandatory life sentence is grossly disproportionate

to his crime. He focuses his analysis on whether his sentence runs afoul of article

I, section 14 of the Washington Constitution, because that provision is more

protective than the Eighth Amendment to the United States Constitution in this

context. State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014).

       Article I, section 14 of the Washington Constitution protects against

sentences that are grossly disproportionate to the crime committed. State v.

Gimarelli, 105 Wn. App. 370, 380, 20 P.3d 430 (2001). To determine whether a

punishment is grossly disproportionate, courts utilize four factors: (1) the nature of

the offense, (2) the legislative purpose behind the statute, (3) the punishment the

defendant would have received in other jurisdictions, and (4) the punishment

meted out for other offenses in the same jurisdiction. State v. Fain, 94 Wn.2d 387,

397, 617 P.2d 720 (1980).

       Our Supreme Court has repeatedly found, after weighing the relevant

factors, that a life sentence for robbery in the second degree for persistent

offenders is not grossly disproportionate under Article I, section 14. Witherspoon,

180 Wn.2d at 889; State v. Manussier, 129 Wn.2d 652, 677, 921 P.2d 473 (1996).

The Witherspoon court found that factors (1), (2), and (4) supported a finding that

a life sentence in this context was not disproportionate, but that factor (3)

supported a disproportionality finding because only three other jurisdictions

impose a similar sentence.      See, 180 Wn.2d at 888-89.         Conyers does not

challenge the Witherspoon court’s analysis as to factor (1). However, he claims


                                             24
No. 78727-6-I/25


that factors (2) and (4) must be reexamined because the legislature has removed

robbery in the second degree from the list of most serious offenses.

       Factor (2) asks the court to consider the legislative purpose behind the

sentencing statute. Witherspoon, 180 Wn.2d at 888. The Witherspoon court found

this factor weighed against a finding of disproportionality. See id. It identified the

purpose of the POAA as to deter crime and to segregate those who continually

commit serious offenses from the rest of society. Id. Conyers argues this purpose

is no longer applicable to Conyers’s sentence because the legislature no longer

considers robbery in the second degree to be a “most serious offense.” Conyers’s

argument is misguided. The legislative purpose at the time he was sentenced did

not change because the legislature later amended the statute. That purpose, to

segregate persistent offenders from the rest of society, was upheld as legitimate

in Witherspoon 180 Wn.2d at 888. The legislature did not express any intent to

have previous sentences revisited when it changed the law, nor did it make any

findings that its purposes had not been served while robbery in the second degree

was considered a “most serious offense.” LAWS OF 2019, ch. 187 § 1. That the

legislature later decided to address robbery in the second degree in a different way

does not make its purposes while the crime was considered a “most serious

offense” any less legitimate.

       Factor (4) askes the court to consider the punishments for other offenses in

the same jurisdiction. Witherspoon, 180 Wn.2d at 888. The Witherspoon court

found this factor did not support a finding of disproportionality because the

repetition of criminal conduct aggravates the guilt of the last conviction and justifies


                                              25
No. 78727-6-I/26


a heavier penalty for the crime. Id. at 889. It pointed out that all persistent

offenders are sentenced equally under the statute. Id. Conyers argues that this

factor must be reexamined because the legislature removed robbery in the second

degree from the list of most serious offenses. Again, his argument is misguided.

That the legislature later decided to remove robbery in the second degree from the

list of most serious offenses does not change the fact that, at the time of his

conviction, the sentences given out for persistent offenders were consistent.

       That the legislature chooses to move in a different direction does not

necessitate a reexamination as to our previous findings on the legitimacy of

legislative intent. Our Supreme Court’s holding in Witherspoon is not any less

applicable to Conyers’s sentence because the legislature has since changed the

law.

       We reject Conyers’s claim that his sentence is grossly disproportionate to

his crime.

       B. Youthfulness

       Conyers argues that his sentence is cruel and unusual because it does not

allow for youthfulness at the time of his offenses to be considered. Conyers is 46

years old. At the time of the robberies, he was 42 years old. He nevertheless

argues that youthfulness should be considered here, because his earlier

convictions for robbery, which form the basis for his classification as a persistent

offender, occurred when he was between the ages of 18 and 20.




                                            26
No. 78727-6-I/27


         In making his arguments, Conyers cites to extensive case law that gives

Washington courts discretion to consider youthfulness when sentencing a

juveniles. Conyers is, of course, not a juvenile. He nevertheless argues that his

sentence must take his former youthfulness into account because he was not

sentenced “for his last strike conviction,” which occurred when he was 42, but

instead that his “sentence rested equally on all the strike convictions.” Thus, he

argues, his life sentence is as much a punishment for his previous strike offenses

at ages 18 through 20 as it was for his current strike conviction.

         Since Conyers made his argument, our Supreme Court has ruled on this

issue.    See State v. Moretti, 193 Wn.2d 809, 814, 446 P.3d 609 (2019). It

determined that that there is no constitutional prohibition against sentencing an

adult to life in prison under the POAA even when one of their prior strikes occurred

in their youth. Id. We see no reason why this logic would not apply to situations

where the defendant committed two prior strikes in their youth.

         In any case, Conyers’s argument that his sentence rests equally on all his

convictions is misguided. Life sentences under the POAA are “not cumulative

punishments for prior crimes.” Witherspoon, 180 Wn.2d at 888-89. The repetition

of criminal conduct aggravates the guilt of the last conviction and justifies a heavier

penalty for the crime.” Id. at 889. Thus, Conyers’s sentence is not for his previous

crimes, where his relative youthfulness may have been a consideration, but for his

most recent crimes, that he committed when he was 42 years old.




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      We therefore reject Conyers’s claim that his youthfulness at the time of his

first strike offenses renders his current punishment cruel and unusual.

      We affirm.



WE CONCUR:




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