                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 10, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 47161-2-II

                               Respondent,

         v.

    ROSS CONRAD CRANOR,                                       UNPUBLISHED OPINION

                               Appellant.

        MELNICK, J. —Ross Conrad Cranor appeals his convictions for burglary in the second

degree, possession of stolen property in the first degree, and two counts of bail jumping. He argues

that the State committed prosecutorial misconduct when the prosecutor misstated evidence during

closing argument. He also argues he received ineffective assistance of counsel because his lawyer

failed to renew a motion to sever the bail jumping charges and failed to object when the prosecutor

misstated the evidence during closing. We affirm.

                                              FACTS

I.      GENERAL OVERVIEW

        On the morning of October 2, 2012, Marilyn and Scott Campbell1 observed a man, later

identified as Cranor, on their personal beach in Mason County. Cranor did not have permission to

be on their property. Scott yelled to Cranor, asking if he needed some help. Cranor walked up




1
  For clarity, we will refer to the Campbells by their first names when acting individually. We
intend no disrespect.
47161-2-II


towards the Campbells’ home and asked to use their phone. Scott gave him permission to use his

phone and observed Cranor dial a number. Scott did not hear anything on the other end of the line

and did not hear Cranor leave a message.

        Cranor walked back to the beach. Marilyn watched Cranor take items from the Campbells’

dock and beach cabana area and drop them down onto the beach where there appeared to be a boat.

Scott saw Cranor putting what looked like a big black bag down on the beach. The Campbells

then observed Cranor row away from their beach in a boat. Marilyn called 911, and Scott followed

Cranor along the shoreline. Scott asked Cranor why he was on other people’s beaches; Cranor did

not respond.

        Scott followed Cranor along the shoreline until he brought the boat to shore. Scott observed

Cranor carrying three large black bags. Scott continued to follow Cranor until Cranor passed a

sign that said something similar to, “[D]ay use only; no overnight camping.” 1 RP at 78. Cranor

pointed at the sign and said to Scott, “[D]on’t walk past that sign.” 1 RP at 78. Cranor walked up

a hill and Scott lost sight of him.

        The Campbells found that their barbeque grill had been moved, had been turned on, and

had been depleted of propane. A can appeared to have been burned on the grill and the barbecue

grill cover was missing. The Campbells’ axe was laying by the fire pit and, it looked as though

someone had attempted to start a fire. According to Marilyn, the grill cover had been there the

day before and there had been propane in the grill.

        Mason County Deputy Michael Western arrived shortly after Cranor walked up the hill.

Western waited for another deputy to arrive and then they searched the area. They did not find

Cranor. Scott and Western examined the boat and Western took photographs of the boat and its

contents. According to Scott, the boat was a Livingston rowboat. Scott observed his grill cover



                                                 2
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in the boat. The boat also contained miscellaneous items including a motor, a Makita tool, a mantel

clock, a 12 volt battery, and a Hewlett Packard printer. Western photographed bottles of liquor

that were in the area surrounding the boat.

       The sheriff’s office matched the found items with previously reported burglaries.

Investigating Officer Sean Dodge stated that he found “four to five different cases involving

burglaries with items that were reported stolen” in the same area, including one victim by the name

Gordon Walgren.2 1 RP at 145.

       Walgren returned from a two or three week vacation to find his home burglarized. Walgren

turned in an insurance claim for the missing items totaling $13,000; however, because of

depreciation, the value was estimated at $5,800. He received approximately $5,000 in insurance.

Among the items missing were a small combination tool, a Hewlett Packard scanner, a battery

taken from a boat, a Livingston rowboat, and bottles of liquor. Walgren acknowledged that none

of the items missing was particularly identifiable. However, Walgren received back almost all of

the items he reported missing at the same time from the sheriff’s office.

       The Campbells provided Western with the number Cranor had dialed on their phone.

Dodge later entered the telephone number into a sheriff’s office database of people who had had

previous contact with the office. The only name in the database associated with the number was

Cranor’s. Both Marilyn and Scott later identified Cranor from a photo montage Dodge presented

to them. They identified Cranor as the man on their beach. Additionally, Marilyn and Scott

identified Cranor in the courtroom during his trial as the man they saw on their beach.




2
  Walgren did not report the items stolen until October 14 because he was out of town. It is
therefore not clear from the record precisely when the burglary took place.


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47161-2-II


II.    PROCEDURAL FACTS

       The State charged Cranor with burglary in the second degree and possession of stolen

property in the first degree. After Cranor failed to appear at court for these charges on two separate

occasions, the State added two counts of bail jumping.

       Prior to the start of trial, Cranor moved on three occasions to sever the bail jumping charges

from the original charges. First, on November 5, 2014 he argued, that bail jumping has a “very

negative connotation” and leaves “a bad flavor in the juror’s mouths.” RP (Nov. 5, 2014) at 3. He

argued that joining the bail jumping charges to the original charges was prejudicial and confusing

to the jury. Defense counsel told the trial court that having spoken with jurors in past trials, he

knew that the bail jumping issue confused jurors and was prejudicial. The court denied the motion

to sever.

       The next day, when the State filed an amended information, Cranor renewed his oral

motion to sever the bail jumping charges from the original charges. Counsel again referenced his

past experience with jurors and argued this situation was “obviously going to be prejudicial”

because to defend against the bail jumping charges, Cranor would have to argue he was in jail in

another county for other reasons. 1 RP at 3. Cranor claimed he was incarcerated in a neighboring

county at the time he failed to appear. The State responded that being in jail in another county was

not an example of something beyond Cranor’s control. The trial court denied Cranor’s motion to

sever the bail jumping charges.

       Later that morning, the court and parties began jury selection. During voir dire, some jurors

acknowledged that they had prior experience with bail jumping and that a defendant’s bail jumping

might impact their consideration of the case. After inquiring individually, several jurors admitted

that bail jumping implicated guilt. These potential jurors were excused. After excusing jurors for



                                                  4
47161-2-II


hardship and for cause, the court determined there was an insufficient number of jurors to select a

panel. The court asked the remaining jurors to return the next day with a new jury venire.

        When the court reconvened for the second day of jury selection, Cranor, for a third time,

renewed his motion to sever the bail jumping charges from the original charges. He argued the

two bail jumping charges were “extremely prejudicial,” as “became very clear through the voir

dire process.” 1 RP at 23. He further argued that “jurors [were] pre-disposed to convict [his] client

of the underlying charges if there [were] bail jumping charges.” 1 RP at 23. Additionally, Cranor’s

lawyer again told the court that based on his personal experience talking to jurors after they sat on

a case, the jurors believed that if someone did not “show up to court they’re hiding something.” 1

RP at 23. Defense counsel reiterated that Cranor’s defense to the charges was that he was in jail,

which was prejudicial. The court asked the State to respond especially in light of the fact that

several jurors the day before indicated, without being prompted, that bail jumping would impact

their decisionmaking adversely to the defendant. The State said that the purpose of voir dire was

to find a fair panel and that the questioning accomplished that goal. The State reiterated that simply

saying he was in jail did not satisfy Cranor’s affirmative defense to bail jumping. Defense counsel

again asserted that he did not believe Cranor could get a fair trial with the charges joined. The

trial court denied the motion.

        During voir dire of the second jury venire, which included the remaining jurors from the

previous day, nobody indicated that he or she could not decide the case fairly; however, several

jurors again expressed strong feelings about bail jumping. The parties then exercised their

peremptory challenges and selected a jury panel. The court swore in the jury panel. Cranor’s

lawyer did not renew the motion to sever when the court swore in the jury or when the State rested

its case.



                                                  5
47161-2-II


       During trial, the State called a court clerk to testify. Through her, the State offered, and

the court admitted, several court documents. These included, Cranor’s pretrial release form in

which Cranor agreed to appear in court on proper notice; the order and notice setting trial, omnibus,

and other hearings, the clerk’s minutes from the arraignment hearing on June 25, 2013, which

indicated Cranor’s presence and that the omnibus hearing was set for July 22, 2013; as well as the

order setting the trial date for May 27, 2014. Cranor signed all of these documents. Also admitted

were the two bench warrants issued on July 22, 2013, and May 27, 2014.3 In the July 22, 2013

clerk’s minutes, the clerk wrote, “Message received from Clerk’s office indicating def[endant]

currently in Kitsap Co. Jail.” CP at 75 (Ex. 40). In the May 27, 2014 clerk’s minutes, the clerk

wrote, “Defendant failed to appear as he is in Kitsap Co. Jail.” CP 75 (Ex. 46).

       Cranor did not call witnesses but through cross-examination during the State’s case in chief

advanced the theory of mistaken identity. Cranor emphasized that the Campbells did not know

him beforehand, and, thus, they could only testify that a man who looked like Cranor was on their

beach. Cranor also argued that there was another man who lived on a boat in the area who could

have taken the items.

       Cranor did not object to the jury instructions, nor did he voice any concerns or corrections

to the instructions. The jury was instructed to consider each count separately. The jury was also

instructed on the affirmative defense to bail jumping and the definition of “uncontrollable

circumstances.” 1 RP at 187. The relevant portion of instruction 28 reads:

              It is a defense to a charge of bail jumping that:
              (1) uncontrollable circumstances prevented the defendant from personally
       appearing in court; and
              (2) the defendant did not contribute to the creation of such circumstances in
       reckless disregard of the requirement to appear; and

3
 The State also offered and the court admitted the Sheriff’s return of bench warrant issued on
November 15, 2013, as well as an appearance bond dated November 18, 2013.


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47161-2-II


               (3) the defendant appeared as soon as such circumstances ceased to exist.
               For the purposes of this defense, an uncontrollable circumstance is an act of
       nature such as a flood, earthquake, or fire, or a medical condition that requires
       immediate hospitalization or treatment, or an act of man such as an automobile
       accident or threats of death, forcible sexual attack, or substantial bodily injury in
       the immediate future for which there is no time for a complaint to the authorities
       and no time or opportunity to resort to the courts.
               The defendant has the burden of proving this defense by a preponderance
       of the evidence.

Clerk’s Papers (CP) at 59.

       During closing argument, the State argued that it normally has the burden of proof beyond

a reasonable doubt, but with Cranor’s asserted affirmative defense, Cranor had to put on evidence

to prove it by a preponderance of the evidence. The State argued that although there was an

affirmative defense to bail jumping, “there’s no evidence before [the jurors] to consider to support

this defense because it has to be an uncontrollable circumstance . . . [and] the defendant did not

contribute to the creation of such circumstance in a reckless disregard of the requirement to

appear.” 1 RP at 198. The prosecutor also pointed out that by asserting an affirmative defense,

Cranor admitted to all the elements of the crime and supplied no evidence to support the defense.

       In closing, Cranor responded that the State presented evidence on the bail jumping charges

and that evidence indicated Cranor was in jail in Kitsap County. Cranor also argued that he made

contact with the court during the hearing dates. Cranor argued,

       I don’t want you to be influenced by the bail jumping. And I think if you—if you
       put that aside and look at the evidence as a whole, you would find my client not
       guilty. If you let that influence, you need to take a step back ‘cause that is
       reasonable doubt itself, because you can’t be fair and impartial. And my client’s
       entitled to a fair and impartial trial, no matter what he’s charged with, no matter
       what he’s done in the past. You have to look at each element of the crimes that
       he’s here for today.

2 RP at 204. Cranor concluded his argument by stating that the State had not provided enough

evidence to prove its case.



                                                 7
47161-2-II


       In rebuttal, the State began,

                Well, there’s an assertion that Mr. Cranor was in custody in Kitsap County
       jail on the days that he missed court. But that’s just an assertion. No evidence has
       been provided to you of that.
                Now more importantly, even if that were true, it’s not a defense. Bottom
       line, look, in order for that to be a defense, he would have to be in jail in Kitsap
       County for something that he didn’t contribute to.

2 RP at 206. Cranor objected, and the court overruled the objection. The State continued:

               It indicates in the defense instruction that an uncontrollable circumstance
       prevented the defendant from personally appearing in court, and the defendant did
       not contribute to the creation of such circumstance in a reckless disregard of the
       requirement to appear.
               It’s evidence you don’t have, plain and simple. And it’s the defense’s
       burden. If he was in custody in Kitsap County jail ‘cause he didn’t show up over
       there doesn’t meet the defense. If he’s in Kitsap County jail because he committed
       a new crime—

       [Defense Attorney]: I would object, your Honor.

       [State]: —doesn’t fit the defense.

       [Defense Attorney]: Not—arguing facts that are not in evidence.

       [Court]: Overruled, it’s argument.

       [State]: And they are facts not in evidence. It’s evidence you don’t have, and that’s
       why they can’t prove the defense. Even if you were to believe the assertion that he
       was in Kitsap County jail at the time.

2 RP at 206-07.

       The jury found Cranor guilty of burglary in the second degree, possession of stolen

property in the first degree, and both counts of bail jumping.4 Cranor appeals.




4
 After the jury verdict, Cranor filed a motion to arrest the judgment and be awarded a new trial
under CrR 7.4 and 7.5. The filing was late and the trial court declined to consider the motion.


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47161-2-II


                                           ANALYSIS

I.     PROSECUTORIAL MISCONDUCT

       Cranor argues the State committed prosecutorial misconduct during closing argument. We

disagree.

       A.      Standard of Review

       To prevail on a claim of prosecutorial misconduct, a defendant must show that the

prosecutor’s conduct was both improper and prejudicial. State v. Lindsay, 180 Wn.2d 423, 440,

326 P.3d 125 (2014). We examine the prosecutor’s conduct and whether prejudice resulted

therefrom by considering the evidence presented, “‘the context of the total argument, the issues in

the case, the evidence addressed in the argument, and the instructions given to the jury.’” State v.

Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting

State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

       B.      Closing Argument

       Cranor argues that the prosecutor’s statement that there was “‘[n]o evidence’” Cranor was

in jail at the times he failed to appear in court was a flagrant and prejudicial misstatement of the

evidence. Br. of Appellant at 18 (quoting 2 RP at 206). However, when read in context, the

prosecutor’s statements were more nuanced than Cranor contends. The prosecutor did not argue

there was “[n]o evidence” generally; but instead, argued there was no evidence to support Cranor’s

affirmative defense that “uncontrollable circumstances” prevented him from appearing at court. 1

RP at 198; 2 RP 206.




                                                 9
47161-2-II


       Cranor contends that the prosecutor misstated the circumstantial evidence regarding him

being in the Kitsap County jail.5 However, when the prosecutor stated there was only “an

assertion” that Cranor was actually in the Kitsap County jail, the statement was accurate because

the only evidence was an assertion in the clerk’s notes. 2 RP at 206. No documents of his actual

imprisonment were submitted. The prosecutor argued that even if the statements in the clerk’s

notes were true, they did not support the affirmative defense to bail jumping. In so doing, the

prosecutor was not attacking the accuracy of the statements in the clerk’s notes but was arguing

the weight the statements should be given and their applicability to the affirmative defense.

       Cranor compares his case to cases, such as State v. Miles, 139 Wn. App. 879, 162 P.3d

1169 (2007), in which a prosecutor suggested there was other evidence the jury did not get to see.

In Miles, the prosecutor cross-examined a witness about certain events but never offered evidence

of the events. 139 Wn. App. at 885-86. In that case, we held that because the prosecutor used

impeachment of a witness to submit information otherwise unsupported by extrinsic evidence, the

prosecutor’s conduct was improper. Miles, 139 Wn. App. at 886-87. The circumstance in Miles

was quite different from the one before us now. Cranor does not point to an instance where the

prosecutor suggested there was additional prejudicial evidence the jury did not know. Instead,

Cranor argues the prosecutor misspoke when he said the evidence did not prove the affirmative

defense to bail jumping. Additionally, the prejudicial fact that Cranor was incarcerated in Kitsap




5
 Cranor also states that the prosecutor went further and suggested Cranor was not incarcerated.
First, Cranor provides no citation to support this assertion. Second, the prosecutor’s statements do
not appear to be about whether or not Cranor was in jail, but about whether or not the information
proved his affirmative defense.


                                                10
47161-2-II


County was already in evidence, without defense objection. The additional cases Cranor cites on

this point are also distinguishable. See State v. Beard, 74 Wn.2d 335, 444 P.2d 651 (1968); State

v. Babich, 68 Wn. App. 438, 842 P.2d 1053 (1993); State v. Ra, 144 Wn. App. 688, 175 P.3d 609

(2008).

          Cranor finally argues that the State’s own evidence supported his affirmative defense to

bail jumping. However, the elements of the affirmative defense are that Cranor must have been

prevented from attending court by “uncontrollable circumstances,” he must not have contributed

to the circumstances, and he must have appeared as soon as the circumstances ceased. RCW

9A.76.170(2). This affirmative defense must be proven by a preponderance of the evidence. See

State v. O'Brien, 164 Wn. App. 924, 931, 267 P.3d 422 (2011). The court instructed the jury with

examples of “uncontrollable circumstances” including, “an act of nature such as a flood,

earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or

an act of man such as an automobile accident or threats of death, forcible sexual attack, or

substantial bodily injury in the immediate future.” CP at 59. The State consistently put forth its

theory that simply being in jail in another county did not constitute proof of uncontrollable

circumstances. Because we have been provided no authority to the contrary, and for the reasons

above, we conclude the prosecutor did not misstate the evidence; therefore, there was no

prosecutorial misconduct.

II.       INEFFECTIVE ASSISTANCE OF COUNSEL

          Cranor argues he received ineffective assistance of counsel because his lawyer did not

renew Cranor’s severance motion and because his lawyer did not object to the prosecutor’s

statements about his bail jumping defense. We disagree.




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47161-2-II


       A.      Standard of Review

       We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P.3d 916 (2009). To prove ineffective assistance of counsel, an appellant must show

that (1) counsel’s performance was so deficient that it fell below an objective standard of

reasonableness and that (2) the deficient performance prejudiced him to the extent that there is a

reasonable probability the deficient performance affected the outcome of the trial. State v. Thomas,

109 Wn.2d 222, 226, 743 P.2d 816 (1987) (applying the Strickland v. Washington, 466 U.S. 668,

668-700, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), test). Failure to establish either prong is fatal

to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

       Competency of counsel is determined on the entire record below. State v. White, 81 Wn.2d

223, 225, 500 P.2d 1242 (1972).        An appellant faces a strong presumption that counsel’s

representation was effective. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Legitimate

trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel.

State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

       B.      Motion to Sever Charges

       Cranor argues he received ineffective assistance of counsel because his lawyer did not

renew Cranor’s severance motion and therefore, waived the issue of severance on appeal.

Additionally, Cranor contends a renewed severance motion would likely have been granted and

counsel’s performance likely prejudiced Cranor because the outcome of separate trials for the

original charges and the bail jumping charges would have been different.




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47161-2-II


        “Severance of charges is important when there is a risk that the jury will use the evidence

of one crime to infer the defendant’s guilt for another crime or to infer a general criminal

disposition.” Sutherby, 165 Wn.2d at 883. However, Washington law disfavors separate trials.

State v. McDaniel, 155 Wn. App. 829, 860, 230 P.3d 245 (2010). To determine whether to sever

charges to avoid prejudice to a defendant, a court considers “‘(1) the strength of the State’s

evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the

jury to consider each count separately; and (4) the admissibility of evidence of the other charges

even if not joined for trial.’” Sutherby, 165 Wn.2d at 884-85 (quoting State v. Russell, 125 Wn.2d

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

        Severance issues are properly made pretrial, or “may be made before or at the close of all

the evidence if the interests of justice require.” CrR 4.4(a)(1). A trial court “shall grant a severance

of offenses,” on application of the defendant, when “the court determines that severance will

promote a fair determination of the defendant’s guilt or innocence of each offense.” CrR 4.4(b).

“If a defendant’s pretrial motion for severance was overruled he may renew the motion on the

same ground before or at the close of all the evidence. Severance is waived by failure to renew

the motion.” CrR 4.4(a)(2).

        In Washington, a bail jumping charge is sufficiently connected to the underlying charge if

the two offenses relate in time and the bail jumping charge stems directly from the underlying

charge. State v. Bryant, 89 Wn. App. 857, 866-67, 950 P.2d 1004 (1998). The trial court properly

tries bail jumping and other charges together as a matter of law if these requirements are met and

the defendant is not prejudiced. Bryant, 89 Wn. App. at 867.




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47161-2-II


       Cranor contends that in light of the voir dire responses and the evidence presented during

the State’s case, the trial court would likely have granted a renewed motion to sever. We disagree.

Because a defense attorney need not bring a futile motion, defense counsel’s conduct was not

deficient.6 Based on the four part test of Sutherby, another motion to sever would have been futile.

165 Wn.2d at 884-85.

       With regard to the factors considered by a trial court when deciding a motion sever, Cranor

generally argues the bail jumping charges allowed the jury to infer a criminal disposition; however,

Cranor does not provide specific arguments as to why the jury verdict would have been different

on each count. He does not specify the prejudice. He makes general statements. The evidence

does not support Cranor’s position.

       On the burglary charge, the State presented evidence that the Campbells saw Cranor on

their personal beach. The Campbells testified that they watched Cranor move items from the part

of their beach where the cabana was located to what turned out to be a boat. The Campbells

inspected their cabana and found their grill cover was missing, and Scott found the cover where

Cranor docked the boat, after following Cranor along the shoreline. The Campbells also observed

other signs that someone had been inside their cabana.

       To prove the possession of stolen property in the first degree charge, the State was required

to prove that Cranor possessed stolen property that exceeded $5,000 in value. RCW 9A.56.150(1).

The testimony of the Campbells and Walgren, as well as the insurance claim made by Walgren,

that put the estimated value of the items in the boat at roughly $5,800, support this charge. And

to prove the bail jumping charges, the State was required to prove Cranor was released by court



6
 Cranor also makes several other arguments about his counsel’s deficient performance. However,
we do not reach these arguments because of our holding.


                                                14
47161-2-II


order or on bail, with knowledge of the requirement to appear later, and failed to do so. RCW

9A.76.170(1). The State presented this evidence through court documents and testimony from the

court clerk. Based on the evidence the State presented to support each charge, it is not clear that

the result would have been different had the trial court severed the counts.

       Second, Cranor argues the assertion of an affirmative defense to bail jumping likely bled

over to the underlying charges. This claim is essentially the same argument as stated above.

Cranor does not explain how joinder impacted clarity of the defense to each charge. Defense

counsel advanced a theory of mistaken identity for the burglary and possession of stolen property

charges. Counsel then asserted an affirmative defense to the bail jumping charges, arguing that

Cranor in fact did miss the dates charged, but had a reason that was out of his control. These

defenses are separate and distinct.

       Third, Cranor argues the jury would not have been able to compartmentalize the evidence

for each charge. However, the jury was instructed to consider each count separately. Additionally,

as outline above, there is no indication that the jury empaneled was incapable of following jury

instruction.

       Fourth, and finally, Cranor argues that the evidence presented on the charges was not cross-

admissible. While it is true that evidence of bail jumping was not admissible to prove the burglary

and possession counts, evidence that Cranor was charged with an offense and released was

admissible to prove bail jumping. See RCW 9A.76.170. Severance is not automatically required

where evidence for one charge is not admissible for another. State v. Bythrow, 114 Wn.2d 713,

720, 790 P.2d 154 (1990). Additionally, Washington courts have already settled that a bail

jumping charge is sufficiently connected to the underlying charge if the offenses relate in time and

the bail jumping charge stems directly from the underlying charge. Bryant, 89 Wn. App. at 866-



                                                15
47161-2-II


67. The burden is on the defendant at trial to demonstrate the charges cannot be joined because of

prejudice. Bythrow, 114 Wn.2d at 718.

        The four factors do not indicate the trial court would have changed its ruling had Cranor’s

attorney renewed the motion to sever after evidence was presented. The parties questioned all of

the potential jurors about bail jumping and there is nothing to suggest that the empaneled jury had

strong feelings about the crime. The potential jurors who indicated the bail jumping charges would

impact their decisionmaking on the other charges were dismissed either for cause or during

peremptory challenges. The remaining jurors either did not respond to any of the questions

regarding potential prejudice from bail jumping or they specifically indicated they could treat each

charge separately. There is also no indication that events during voir dire of the second jury venire

would have changed the trial court’s ruling. We conclude defense counsel’s performance was not

deficient.

        C.       Misstatement of the Evidence

        Cranor also argues he received ineffective assistance of counsel because defense counsel

failed to object to the prosecutor’s misstatement of the evidence. 7 Cranor argues no conceivable

trial tactic explains counsel’s performance and furthermore, even if counsel wanted to avoid

drawing attention to the statement, he could have moved for a mistrial. We conclude that because

the prosecutor’s statements were not improper, Cranor’s defense attorney’s failure to object was

not deficient.




7
  The State asserts it is unclear whether or not defense counsel objected. From a review of the
record, it is clear defense counsel objected to a separate statement.


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47161-2-II


        We affirm the trial court.

        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.




                                                            Melnick, J.

We concur:




        Johanson, P.J.




        Sutton, J.




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