                                                                         FILED 

                                                                       Dec. 15, 2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                            )         No. 32451-6-III
                                                )         (consolidated with
                     Respondent,                )         No. 32452-4-III;
                                                )         No. 32453-2-III)
              v.                                )
                                                )         UNPUBLISHED OPINION
JERRY RAY MEARS,                                )
                                                )
                     Appellant.                 )

       LAWRENCE-BERREY,1. -        In three consolidated cases, a jury found Jerry R. Mears,

Sr. guilty of two counts of theft of a motor vehicle, theft of a firearm, three counts of first

degree trafficking in stolen property, third degree theft, two counts of harassment by

threats to kill, two counts of intimidating a witness, two counts of tampering with a

witness, and second degree theft. He appeals, alleging (1) sufficient evidence does not

support his tampering with a witness and intimidating a witness convictions, (2) denial of

his constitutional right to present a defense, (3) prosecutorial misconduct, (4) unanimity

instructional error, (5) failure to properly instruct the jury when an alternate juror was

substituted, (6) failure to conduct a same criminal conduct analysis on several of the

charges, (7) ineffective assistance of counsel, and (8) sentencing error relating to legal
No. 32451-6-III; 32452-4-III; 32453-2-II1
State v. Mears


financial obligations (LFOs) and a no-contact order. We address each ofMr. Mears'

contentions, and generallyl affinn.

                                          FACTS

       Mr. Mears' wife, April Mears, worked as a live-in caretaker for SO-year-old Jack

O'Bryan. Mr. O'Bryan lived on his son's property in a remote area of Okanogan County.

Mr. Mears also stayed at the property.

       On the property was a Ford F250 truck owned by Michael Brown. Mr. Brown left

the truck at the O'Bryan property because he planned to sell or trade it to Mr. O'Bryan's

son.

       On September 3, 2013, Mrs. Mears and Mr. O'Bryan reported a theft to Okanogan

County Sheriffs Office Deputy Justin Weigel. Mrs. Mears and Mr. O'Bryan told the

deputy that the Ford truck and a log splitter were taken from the O'Bryan property. They

reported that Mr. Mears had originally borrowed the truck, but did not return it, claiming

it broke down and then claiming someone stole it. Mrs. Mears also told the officer that

Mr. Mears told her he was going to take the log splitter because he felt it was '" owed

to'" him. Report of Proceedings (RP) (Mar. 21, 2014) at 191.



       1 The sole exception is that we pennit Mr. Mears to file a motion with the trial
court for it to correct a possible clerical error in totaling the LFOs.

                                             2

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       With the assistance of Mrs. Mears, Deputy Weigel located the truck in an alley

behind a motel. Joseph Wise provided a handwritten receipt showing he recently

purchased the truck from Mr. Mears for $100. After recovering the truck, Mr. Brown

returned it to the O'Bryan property. Mrs. Mears expressed fear to the deputy that Mr.

Mears would come back to the O'Bryan property and cause trouble.

       On a separate occasion, Mr. Brown's father-in-law, Herman Mullis, reported to

Deputy Weigel that Mr. Mears took his shotgun and never returned it. Prior to reporting

the shotgun stolen, Mr. Brown; his wife, Laura Brown; and Mr. Mullis attempted to

retrieve the gun from Mr. Mears on two occasions. On the second occasion, Mrs. Brown,

Mr. Mullis, and Mr. Mears went to Walmart after Mr. Mears told them a friend had the

gun and might be there. Mr. Mears then left the Walmart, leaving Mrs. Brown and Mr.

Mullis behind. The gun was never recovered.

      Mrs. Brown and her father later moved to the O'Bryan property to help care for

Mr. O'Bryan and his property. At the time Mrs. Brown and Mr. Mullis moved to the

property, Mr. Mears was no longer staying there.

      Mr. Mears later sold a log splitter to Dean Tonner for $40. Mr. Tonner was

concerned the log splitter was stolen based on the low price. He suspected the log splitter

belonged to the O'Bryans. After confirming the log splitter was indeed stolen from the


                                            3

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


O'Bryans, Mr. Tonner turned it over to the sheriffs office. Officers arrested Mr. Mears.

       Under case no. 13-1-00317-0, the State charged Mr. Mears with theft ofa motor

vehicle for the truck, theft of a firearm for the shotgun, three counts of first degree

trafficking in stolen property relating to the truck, shotgun, and log splitter, and third

degree theft for the log splitter. At the time of Mr. Mears' preliminary appearance, he

was ordered not to contact the State's witnesses. Specifically, he was told to, "not to

contact or go to" Mr. O'Bryan's and Mr. Mullis's respective residences. RP (Mar. 21,

2014) at 291.

       Approximately three weeks later, Mrs. Brown and her father, Mr. Mullis, went to a

grocery store. Mrs. Brown stayed in the truck in the parking lot. Mr. Mears approached

Mrs. Brown as she sat in the truck. Mr. Mears told Mrs. Brown that they were all going

to jail, and he was innocent. Mrs. Brown tried to end the conversation, which made Mr.

Mears angry. As Mrs. Brown rolled up the truck window, Mr. Mears told her, '" Fine, I'll

just blow your f-ing heads off.'" RP (Mar. 20, 2014) at 85. Mrs. Brown took Mr.

Mears' threat seriously and believed it was directed to everyone residing at the O'Bryan

property.




                                               4

No. 32451-6-1II; 32452-4-1II; 32453-2-1II
State v. Mears


       Two days later, Mr. Mears came to the O'Bryan property early in the morning

looking for Mrs. Mears. He was driving a silver sedan. Mrs. Mears refused to speak to

him. Mr. Mullis asked Mr. Mears to leave. During trial, Mr. Mears acknowledged that

he then said, "I'm going to blow your motherfucking heads off." RP (Mar. 21, 2014) at

134. Mr. Mullis took Mr. Mears' threat seriously and felt by Mr. Mears tone and actions

that it was directed to all individuals on the property. Mr. Mullis again told Mr. Mears to

leave and he responded, '" [Y]ou can kiss your shotgun goodbye. '" RP (Mar. 20, 2014)

at 136. Mr. Mullis called the police.

       Sheriffs deputies arrived and found Mr. Mears' shoes, sunglasses, and a set of

keys inside Mr. O'Bryan's residence. They also observed Mr. Mears left notes

throughout the house. One note stated that Mrs. Mears was the O'Bryan's '" nigger'" and

another was directed to Mr. O'Bryan and that he will '" know the truth; someday the truth

will come out.'" RP (Mar. 21,2014) at 199. Mr. Mears also ransacked Mrs. Mears'

room and left a knife lying on her table.

       A few days later, the same silver sedan Mr. Mears was driving earlier was found

abandoned on a side road. Arnold Van Hees had previously reported the vehicle stolen

after he loaned it to Mr. Mears to purchase car parts and he never returned. Mr. Van

Hees' vehicle contained tools and a Skill Saw valued over $1,500.


                                             5

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       The State charged Mr. Mears, under case number 13-1-00347-1, with theft of a

motor vehicle and second degree theft for the tools.

       After Mr. Mears' second arrest, he sent a letter to Mrs. Mears that ended with

'" [t]ick, tock; tick, tock'" which Mrs. Mears considered to be a threat toward her. RP

(Mar. 21, 2014) at 202.

       The State charged Mr. Mears, under case number l3-1-00350-1, with harassment

by threats to kill involving Mrs. Brown, two counts of harassment by threats to kill

involving Mr. Mullis, intimidating a witness involving Mrs. Brown, two counts of

intimidating a witness involving Mr. Mullis, tampering with a witness involving Mr.

O'Bryan, and tampering with a witness involving Mrs. Mears.

       All three cases were set for trial on November 5, 2013. The trial court, at defense

counsel's request, granted trial continuances on November 4, and again on November 25.

On January l3, 2014, the parties agreed to consolidate the three cases. Also in January,

the trial court granted defense counsel's request to continue the cases out two trial

settings to March 4. As that date approached, two other trials were set to start ahead of

Mr. Mears' trial. The trial court indicated that if Mr. Mears' trial did not start the

following week, it would carry the trial setting over to the week of March 17.




                                              6

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


       On March 19 at 3:00 p.m., Mr. Mears provided the State with a revised witness

list. The list included four previously undisclosed witnesses without listing the subject of

their testimony. Three were family members of Mr. Mears and one was the defense

investigator.

       Trial began on March 20. Prior to the start of testimony, the State requested to

suppress three of the witnesses disclosed at 3:00 p.m. the day before. The prior day's

disclosure contained only the names of the witnesses, not their statements. The morning

oftrial, the State received an e-mail disclosing the particulars:

               Koeetia Mears: April and Jack came to her residence when jerry
       [sic] was arrested. Jack said Jerry had permission to sell truck.
               Shelby Mears: Jack was crying and in tears when he told Shelby that
       "jerry [sic] had been wronged" regarding the theft of the truck.
               Jerry Mears Jr.: was on [sic] jail visiting booth with April who was
       crying saying "they're making me do this[.]"

Br. of Appellant, App. C.

       Defense counsel contested the request, arguing the witnesses were in the police

report, and therefore the State was on notice that they may be called. Defense counsel

advised the trial court that it would not object to a trial continuance so the State could

interview the new witnesses. The court noted that the case had been continued multiple

times and denied the remedy of a continuance. The court determined that Mr. Mears

failed to comply with erR 4.7(b)(l). After reviewing what the witnesses would testifY

                                              7

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


about (which consisted mainly of hearsay statements), the court elaborated, "it doesn't

comply with the discovery, that .... Well, the ... violation-can't find it's made in bad

faith, however, it's an act of delay that may be viewed in some aspects as to the

terminology of willfulness. . .. [T]here is a conscious decision not to get this done in a

timely manner." RP (Mar. 20, 2014) at 160.

       During closing arguments, the prosecutor commented, "He's charged with

tampering; arguably the threats to kill were directed towards the group of them. But in

this case he-came back to the property, entered the house where Mrs. Mears and Mr.

O'Bryan were living, left his notes-the notes around there, destroyed her stuff,-they

were witnesses from the very outset of the case." RP (Mar. 21, 2014) at 398. The

prosecutor continued, "he basically-gone into the house where they resided, left

threatening notes, basically tore the place up where he had no right to be. He continued to

send letters to Mrs. Mears even after the fact, even after, again, he was told not to contact

witnesses or victims." RP (Mar. 21, 2014) at 408. The prosecutor then stated, "In this

case,-defendant did tamper. Now, he clearly also made threats. Could that be

intimidating? Absolutely. But at a minimum it's tampering, which was trying to

intimidate or prevent or hinder those individuals from cooperating, show up, giving

evidence." RP (Mar. 21, 2014) at 408.


                                              8

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       After closing arguments, the court instructed the jury to first pick a presiding juror

and then "take some time to go back to the jury deliberation room and as I indicated begin

the process of-but,-again, if you would like to continue your deliberations into this

evening, you are free to do so." RP (Mar. 21, 2014) at 428. The court reiterated to the

jury that because it was late on a Friday evening the jury could either start deliberating

then or "come back and deliberate on Monday." RP (Mar. 21, 2014) at 428. Thejury

reported to the bailiff that after picking a foreperson they wished to retire for the

weekend. The court, in setting a return time for Monday, told the jurors to report directly

to the jury deliberation room and not to "start the deliberation" until "all twelve of the

jurors are present." RP (Mar. 21, 2014) at 437.

       On Monday, the court learned one juror was in the emergency room. The alternate

juror was asked to return to the courthouse. The court summarized on the record that

when the jury left on Friday, the jury had selected a presiding juror and the only issue

"really decided [was] whether they were going to deliberate or leave for the weekend and

... start[] here on Monday. . .. [The jury] made that decision to come [on Monday]." RP

(Mar. 24, 2014) at 443. The court then instructed the 11 jurors, "I do not want you to

discuss this case until [the alternate juror] arrives." RP (Mar. 24, 2014) at 446.




                                              9

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


       On that same day, the jury found Mr. Mears guilty of two counts of theft of a

motor vehicle, theft of a firearm, three counts of first degree trafficking in stolen property,

third degree theft, two counts of harassment by threats to kill, two counts of intimidating

a witness (involving Mrs. Brown and Mr. Mullis), two counts of tampering with a witness

(involving Mr. O'Bryan and Mrs. Mears), and second degree theft. The jury found Mr.

Mears not guilty of one count of intimidating a witness (involving Mr. Mullis) and one

count of harassment by threats to kill (involving Mr. Mullis).

       On April 1,2014, the court sentenced Mr. Mears to a high-end standard range

sentence of 102 months based on an agreed upon offender score of9, and assessed LFOs

at $1,110.50 for each case number for a total obligation of $3,331.50. The court also

ordered Mr. Mears to have no contact with Mrs. Mears, Mrs. Brown, Mr. Mullis, and Mr.

O'Bryan until April 1, 2024 (10 years) which the court found "does not exceed the

statutory maximum sentence." Clerk's Papers (CP) at 9. Mr. Mears filed three separate

notices of appeal of the trial court's April 1, 2014 judgment and sentence. This court

consolidated the appeals.




                                              10 

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


                                        ANALYSIS

1.     Sufficiency ofEvidence/Jury Unanimity

       Mr. Mears first challenges the sufficiency of the evidence to support his

convictions for two counts of tampering with a witness (involving Mr. O'Bryan and Mrs.

Mears) and intimidating a witness (involving Mrs. Brown). He further argues the court

should have provided a unanimity instruction because there are alternative means to

commit these crimes.

       Evidence is sufficient to support a guilty finding if, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the

crime's essential elements beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,

221,616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781,61 L. Ed. 2d 560 (1979). An evidence sufficiency challenge "admits the truth of

the State's evidence and all inferences that reasonably can be drawn therefrom." State v.

Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). We defer to the jury's assessment

of witness credibility and evidence weight or persuasiveness. State v. Carver, 113 Wn.2d

591,604, 781 P.2d 1308, 789 P.2d 306 (1989).

       Witness Tampering. The witness tampering statute states in relevant part,

"A person is guilty of tampering with a witness if he or she attempts to induce a witness


                                             11 

No. 32451-6-III; 32452-4-III; 32453-2-II1
State v. Mears


or person he or she has reason to believe is about to be called as a witness in any official

proceeding ... to (a) Testify falsely or, ... withhold any testimony; or (b) Absent

himself or herself from such proceedings; or (c) Withhold from a law enforcement agency

information which he or she has relevant to a criminal investigation."

RCW 9A.72.l20(1).

       Here, Mr. Mears came to the O'Bryan property and was asked to leave. Mr. Mears

admitted during trial that he then said, "I'm going to blow your mother fucking heads off."

RP (Mar. 20, 2014) at 134. This comment was directed to Mr. Mullis, but based on Mr.

Mears' tone and actions, Mr. Mullis took it as applying to all individuals on the property.

When the police arrived, they observed Mr. Mears left notes throughout the house, calling

Mrs. Mears vile names and telling Mr. O'Bryan that he will "'know the truth; someday

the truth will come out.'" RP (Mar. 21, 2014) at 199. Mr. Mears also ransacked Mrs.

Mears' room and left a knife lying on her table. Later, Mr. Mears sent a letter to Mrs.

Mears that ended with'" [t]ick, tock; tick, tock'" which Mrs. Mears considered to be a

threat toward her. RP (Mar. 21, 2014) at 202. These actions occurred after Mr. Mears

was arrested.

       Viewing these facts in a light most favorable to the State, a rational trier of fact

could find that both Mr. O'Bryan and Mrs. Mears were witnesses to Mr. Mears' criminal


                                              12 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


behavior. Through threatening words and actions, Mr. Mears attempted to induce them to

testify falsely, withhold testimony, absent himself or herself from such proceedings,

and/or withhold from law enforcement relevant information. Thus, sufficient evidence

exists to support Mr. Mears' witness tampering convictions involving both Mr. O'Bryan

and Mrs. Mears.

       Intimidating a Witness. RCW 9A. 72.11 O( 1), in relevant part, provides that an

individual "is guilty of intimidating a witness if a person, by use of a threat against a

current or prospective witness, attempts to: (a) Influence the testimony of that person;

(b) Induce that person to elude legal process summoning him or her to testify; (c) Induce

that person to absent himself or herself from such proceedings; or (d) Induce that person

not to report the infonnation relevant to a criminal investigation."

       Here, there was a pretrial, no-contact order that prohibited contact with any ofthe

State's witnesses. Mrs. Brown was a person Mr. Mears either believed might be called as

a witness in any official proceeding and/or had reason to believe she had information

relevant to a criminal investigation given her involvement with the stolen gun and that she

resided on the O'Bryan property. After his release from jail, Mr. Mears confronted Mrs.

Brown at a store and told her they were all going to jail and he was innocent, and then

threatened to '" blow your f.-ing heads off. '" RP (Mar. 20, 2014) at 85. Mrs. Brown


                                              13 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


took the threat as a serious expression of Mr. Mears' intent. The threat was perceived as

being directed at her and the other individuals involved.

       Viewing this evidence in the light most favorable to the State, a rational trier of

fact could find that Mr. Mears used threats to attempt to influence Mrs. Brown's

testimony, induce her to elude legal process, induce her to absent herself from any future

proceedings, and/or induce her to not report information relevant to a criminal

investigation. Evidence is therefore sufficient to support Mr. Mears' intimidating a

witness (involving Mrs. Brown) conviction.

       Unanimity Instruction. Next, Mr. Mears argues, for the first time on appeal, the

court should have provided a unanimity instruction because there are alternative means to

commit witness tampering and intimidating a witness. We review de novo whether a

unanimity instruction is required. In re Det. ofKeeney, 141 Wn. App. 318, 327,169 PJd

852 (2007). We initially note that we reach this issue because the failure to give a

unanimity instruction is an error of constitutional magnitude that a defendant may raise

for the first time on appeal. State v. Locke, 175 Wn. App. 779, 802,307 PJd 771 (2013),

review denied, 179 Wn.2d 1021 (2014).

      In Washington, criminal defendants have a constitutional right to a unanimous jury

verdict. CONST. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702,707,881 P.2d 231


                                             14 

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


(1994). "This right may also include the right to a unanimous jury determination as to the

means by which the defendant committed the crime when the defendant is charged with

(and the jury is instructed on) an alternative means crime." State v. Owens, 180 Wn.2d

90,95,323 P.3d 1030 (2014) (alteration in original). An alternative means crime sets

forth "distinct acts that amount to the same crime." State v. Peterson, 168 Wn.2d 763,

770,230 P.3d 588 (2010) (alteration in original). "When a crime can be committed by

alternative means, express jury unanimity as to the means is not required where each of

the means is supported by substantial evidence." State v. Gonzales, 133 Wn. App. 236,

243, 148 P.3d 1046 (2006). However, if the evidence is insufficient to support each of

the means, aparticularized expression ofjury unanimity is required. Ortega-Martinez,

124 Wn.2d at 707-08.

      As discussed above, sufficient evidence exists to support all alternative means of

witness tampering (involving Mr. O'Bryan and Mrs. Mears). Mr. Mears' words and

actions show he attempted to induce a witness or person about to be called as a witness to

testifY falsely, withhold testimony, absent himself or herself from such proceedings, and

withhold from law enforcement relevant information. Thus, under Gonzales, a unanimity

instruction was not required.




                                            15 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       Turning to the intimidating a witness convictions, Mr. Mears challenges the lack of

a unanimity instruction relating to the conviction involving Mrs. Brown and the

conviction involving her father, Mr. Mullis. As discussed above, sufficient evidence

supports all means of committing intimidating a witness; therefore, a unanimity

instruction was not required. Regarding Mr. Mullis, because he was with his daughter

during the threats, substantial evidence exists that Mr. Mears attempted to induce, and use

threats to attempt to induce, the witnesses to withhold information, not cooperate or

appear, and/or not provide complete information, to prevent these cases from proceeding.

Accordingly, the court did not err in not providing a unanimity instruction on either

intimidation charge.

2.     Right to Present Defense

       Mr. Mears next argues the trial court abused its discretion in excluding three of his

lately disclosed witnesses.

       Discovery decisions based on erR 4.7 are within the trial court's sound discretion.

State v. Hutchinson, 135 Wn.2d 863,882,959 P.2d 1061 (1998). A trial court abuses its

discretion when it makes decisions based on untenable grounds or for untenable reasons.

State v. Vy Thang, 145 Wn.2d 630,642,41 P.3d 1159 (2002).




                                             16 

No. 32451~6~III;   32452~4~III;   32453-2-111
State v. Mears


       Mr. Mears first argues the State knew he would call three of his relatives to testify

on his behalf because they were listed in the police reports. This argument fails.

CrR 4.7 (b)( 1) states, "[T]he defendant shall disclose to the prosecuting attorney ... no

later than the omnibus hearing: the names and addresses of persons whom the defendant

intends to call as witnesses at the hearing or trial, together with any written or recorded

statements and the substance ofany oral statements ofsuch witness." (Emphasis added.)

The rule clearly required Mr. Mears to inform the State of the names and addresses of the

witnesses and the substance of their testimony by the omnibus hearing. Mr. Mears did

not disclose even the witnesses' names until the day before triaL This was a clear

violation ofCrR 4.7(b)(l).

       Mr. Mears next argues that the trial court's decision to exclude the three witnesses

was an unjust discovery sanction and amounted to a denial of his right to present a

defense. Both the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the criminal defendant's right to

present a defense. State v. Strizheus, 163 Wn. App. 820, 829-30, 262 P.3d 100 (2011).

But a criminal defendant does not have a constitutional right to present inadmissible

evidence. State v. Jones, 168 Wn.2d 713,720,230 P.3d 576 (2010). Here, the

testimonies of the three desired witnesses were disclosed the morning of trial. The e-mail


                                                17 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


disclosure shows that their proffered testimonies were entirely hearsay. Because a

defendant does not have a constitutional right to present inadmissible evidence, the trial

court did not abuse its discretion in disallowing testimony from these witnesses.

3.     Prosecutorial Misconduct

       Mr. Mears next argues the prosecutor wrongly argued facts not presented during

trial during his closing remarks.

       A defendant claiming prosecutorial misconduct bears the burden of establishing

both the impropriety of the comments and their prejudicial effect. State v. Russell, 125

Wn.2d 24, 85, 882 P.2d 747 (1994). Even where the defendant proves improper conduct,

misconduct does not constitute prejudicial error unless there is a substantial likelihood it

affected the jury's verdict. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239

(1997). Where, as here, the defendant fails to object at trial, any error is waived except

where the conduct is so "flagrant and ill-intentioned that it evinces an enduring and

resulting prejudice that could not have been neutralized by an admonition to the jury."

Id. at 719. Indeed, the absence of an objection strongly suggests that the argument did not

appear critically prejudicial to the appellant in the context of trial. State v. McKenzie, 157

Wn.2d 44,53 n.2, 134 P.3d 221 (2006) (quoting State v. Swan, 114 Wn.2d 613, 661, 790

P.2d 610 (1990)).


                                             18 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       Mr. Mears objects to the prosecutor's comments regarding threatening remarks and

notes left at the O'Bryan property to support the tampering with a witness charges.

Evidence presented at trial shows Mr. Mears carne to the O'Bryan property and was asked

to leave. Mr. Mears acknowledged during trial that he then stated, "I'm going to blow

your motherfucking heads off." RP (Mar. 20,2014) at 134. This comment could be

construed as being directed to all the occupants of the property. When the police arrived,

they observed Mr. Mears left notes throughout the house, calling Mrs. Mears vile names

and telling Mr. O'Bryan that he will '''know the truth; someday the truth will corne out.'"

RP (Mar. 21, 2014) at 199. Mr. Mears also ransacked Mrs. Mears' room and left a knife

lying on her table. Later, Mr. Mears sent a letter to Mrs. Mears that ended with '" [t]ick,

tock; tick, tock'" which Mrs. Mears considered to be a threat toward her. RP (Mar. 21,

2014) at 202. These actions occurred after Mr. Mears was arrested.

       The prosecutor's closing remarks that Mr. Mears made threatening remarks and

left threatening notes was supported by the evidence. Accordingly, we perceive no

impropriety in the remarks, and therefore no basis for finding prosecutorial misconduct.

4.    Alternate Juror Instruction

       Mr. Mears argues, for the first time on appeal, he was denied his right to an

impartial and unanimous jury because an alternate juror replaced an original juror without


                                             19 

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


special instruction from the trial court.

       "Our state constitution requires that in a criminal prosecution an impartial jury

render a unanimous verdict." State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014)

(citing CON ST. art. I, §§ 21, 22). To protect this right, a trial court must instruct ajury

that has begun deliberations to start anew when an original juror is replaced with an

alternate juror. CrR 6.5. Failure to instruct the reconstituted jury on the record that it

must disregard all prior deliberations and begin deliberations anew is reversible error of

constitutional magnitude. Lamar, 180 Wn.2d at 586.

       Here, the record shows there were no deliberations before the original juror was

excused. The case was submitted to the jury late on a Friday afternoon. The jury

conducted two administrative tasks; it picked a presiding juror and it voted to not start

deliberations until Monday. Before deliberations started, the alternate juror was seated.

The court clarified on the record that when the jury left on Friday, the jury had selected a

presiding juror and the only issue decided was whether it was going to deliberate or leave

for the weekend. The court then instructed the 11 jurors, "I do not want you to discuss

this case until [the alternate juror] arrives." RP (Mar. 24,2014) at 446. When the

alternate arrived, the jury began deliberations. Accordingly, the court did not fail to

comply with CrR 6.5 and there was no denial of Mr. Mears' right to an impartial and


                                              20 

No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


     .       .
unammous JUry.

5.       Same Criminal Conduct

         Mr. Mears next contends, for the first time on appeal, that the trial court erred

when it failed to treat some of his convictions as the same criminal conduct for the

purpose of calculating his offender score.

         Although a criminal defendant may challenge an offender score for the first time

on appeal, a defendant waives that right when the alleged error involves a factual dispute

or trial court discretion. State v. Jackson, 150 Wn. App. 877, 892,209 PJd 553 (2009).

Where a defendant is convicted of more than one crime, the sentencing court must make

discretionary decisions in determining whether those crimes arose from the same criminal

conduct. State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000). Thus, by failing

to raise the issue of same criminal conduct at sentencing, a defendant waives the right to

argue that issue on appeal. Jackson, 150 Wn. App. at 892.

         During sentencing, the only mention of same criminal conduct was the

prosecutor's comment, "Even if we treat certain cases as same criminal conduct we still

end up with a nine or greater [offender score]." RP (Apr. 1,2014) at 458. Defense

counsel then stated that Mr. Mears agreed "with the state in terms of what the sentencing

range is on the various counts." RP (Apr. 1,2014) at 462.


                                               21 

 No. 32451-6-III; 32452-4-III; 32453-2-III
 State v. Mears


        Because Mr. Mears did not argue at sentencing that his offenses constituted the

 same criminal conduct, he cannot raise this issue for the first time on appeal.

 Nevertheless, because Mr. Mears was found guilty of 14 offenses, even if the trial court

 erred by not conducting a same criminal conduct analysis, his offender score would still

 be a 9, resulting in the same sentence. Thus, Mr. Mears cannot show prejudicial error.

 6.     Sentencing Error

        Mr. Mears next challenges his sentence, arguing the no-contact provision

 pertaining to Mrs. Mears exceeds the statutory maximum sentence and the combination of

 the LFOs amounted to an improper consecutive sentence.

        A defendant may challenge an illegal or erroneous sentence for the first time on

 appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State v. Ford,

 137 Wn.2d 472,477,973 P.2d 452 (1999)). We review such challenges de novo. State v.

Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       No-contact order. Former RCW 9.94A.505(8) (2010)2 states that as a part of any

 sentence, the court may impose and enforce crime-related prohibitions and affirmative

 conditions as provided in this chapter. "[T]rial courts may impose crime-related



        2 We note former RCW 9.94A.505(8) was renumbered as RCW 9.94A.505(9) per
. the Laws of2015, ch. 287, § 10, effective July 24,2015.

                                              22
No. 32451-6-111; 32452-4-111; 32453-2-111
State v. Mears


prohibitions, including no-contact orders, for a term of the maximum sentence to a

crime." Armendariz, 160 Wn.2d at 120.

       The no-contact order in this case prohibited contact with Mrs. Mears for 10 years.

Mr. Mears argues that since the only conviction that involved Mrs. Mears carried a five

year statutory maximum, the no-contact order could only last five years.

       Witness tampering is a class C felony. RCW 9A.72.120(2). The maximum

sentence for a class C felony is five years. RCW 9A.20.021(1)(c). However, no-contact

orders are not limited to the victims of the crime. State v. Warren, 165 Wn.2d 17,32-34,

195 P.3d 940 (2008). Division One of this court recently explained that when a witness

provides testimony for multiple offenses, a no-contact order may apply up to the statutory

maximum ofthose crimes. State v. Navarro, 188 Wn. App. 550, 556-57, 354 P.3d 22

(2015). Mrs. Mears was a witness to several of the crimes, including first degree

trafficking in stolen property, involving the truck and log splitter. First degree trafficking

in stolen property is a class B felony. RCW 9A.82.050(2). Class B felonies have a 10­

year statutory maximum. RCW 9A.20.021(1)(b). Thus, because Mrs. Mears testified to

an offense that carries a 10-year statutory maximum, the trial court did not err in ordering

Mr. Mears to have no-contact with her for 10 years.




                                             23 

No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


       LFOs. Mr. Mears next argues the court violated RCW 9.94A.589(1)(a) by

imposing one set ofLFOs per case. Here, the court imposed a $500.00 victim

assessment, $220.50 in court costs (consisting of a $200.00 criminal filing fee and a

$20.50 sheriffs service fee), and $100.00 deoxyribonucleic acid collection fee.

RCW 9.94A.589(1)(a) states in part, "whenever a person is to be sentenced for two or

more current offenses ... [s]entences imposed under this subsection shall be served

concurrently." Mr. Mears argues this statute also applies to LFOs. But, the language of

this statute and the cases cited by Mr. Mears provide no authority for requiring imposition

of "concurrent" LFOs. In general, LFOs are ordered to provide restitution to the victim

and reimburse the courts and attorneys for costs associated with a felony conviction.

Former RCW 9.94A.030(30) (2012).3 Each case generally involves separate expenses;

thus, running LFOs concurrently would be nonsensical. Moreover, here, there were

multiple victims, three separate cases filed, and three separate sheriff service fees.

Accordingly, Mr. Mears' argument is unpersuasive.

       Lastly, Mr. Mears argues the LFO total should have been $860.50 for each case

number instead of$I,110.50. The costs do total $860.50. The higher figure appears to be



     3 We note that former RCW 9.94A.030(30) was renumbered as
RCW 9.94A.030(31) per the Laws·of2015, ch. 287, § 1, effective July 24, 2015.


                                              24
No. 32451-6-III; 32452-4-III; 32453-2-III
State v. Mears


a clerical error. Mr. Mears may file a motion with the trial court for it to examine and

correct this possible clerical error. CrR 7.8(a).

7.     Ineffective Assistance ofCounsel

       Mr. Mears' final contention is that he was denied effective assistance of counsel

based on counsel's failure to request a first time offender waiver, argue same criminal

conduct at sentencing, object to prosecutorial misconduct, request dismissal of the

witness tampering convictions based on insufficient evidence to support the convictions,

and not objecting to the no-contact order and LFOs.

       A criminal defendant has the right under the Sixth Amendment to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). To establish ineffective assistance of counsel, a defendant must

show both deficient performance and resulting prejudice. Id. If a defendant fails to

satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129

Wn.2d 61, 78, 917 P.2d 563 (1996). In order to establish the first prong, the defendant

must show that his attorney's performance falls below an objective standard of

reasonableness. Stenson, 132 Wn.2d at 705-06. There is a strong presumption of

effective assistance of counsel and the defendant must establish the absence of a strategic

reason for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d


                                              25 

No. 32451-6-111; 32452-4-111; 32453-2-III
State v. Mears


1251 (1995). If the attorney's conduct "can be characterized as legitimate trial strategy or

tactics," the conduct cannot be the basis of an ineffective assistance claim. State v.

McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

       The majority of Mr. Mears' claims of deficient performance have already been

addressed and no error has been found. The one remaining claim is that counsel was

ineffective by failing to request a first time offender waiver during sentencing.

       RCW 9.94A.650(2) allows the court to waive the imposition ofa standard range

sentence for a first time offender and impose a sentence including up to 90 days of

confinement. If a defendant qualifies as a first time offender, the court has "broad

discretion" to waive the standard range sentence and impose a first time offender

sentence. State v. Johnson, 97 Wn. App. 679,682, 988 P.2d 460 (1999).

       If there are no disqualifying convictions, the first time offender option is available

to the sentencing court without a recommendation by defense counsel. Id. Assuming

without deciding it was deficient performance for counsel to not request a waiver, Mr.

Mears' ineffective assistance of counsel claim still fails because he cannot show

prejudice. It was still within the sentencing court's discretion to impose a first time

offender waiver even without counsel's recommendation. The court chose not to.

Moreover, the court imposed the high end of a standard range sentence, showing its intent


                                             26 

No. 32451-6-III; 32452-4-III; 32453-2-II1
State v. Mears


to impose a higher end sentence given the multiple crimes and victims. Without the

prejudice prong, Mr. Mears' ineffective assistance of counsel argument fails.

Hendrickson, 129 Wn.2d at 78.

      Affirm.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berrey, J.

WE CONCUR: 





                                            27 

