 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          CI
                                                                                        VIC:5
 THE STATE OF WASHINGTON,                      )                                 cp     -4
                                               )         No. 75619-2-1              rZt
                                                                                 73.rn
                      Respondent,              )                                     cs-n
                                                                                     -rt
                                               )         DIVISION ONE
                                                                                  CD       7p.
               v.                              )                                           (firm p
                                               )         UNPUBLISHED OPINIGI
 JOSEPH LOCHUCH EWALAN                         )                          1TP:
                                               )                                             5,37:a
                      Appellant.               )         FILED: April 30, 2018        c°
                                               )
       APPELWICK, C.J. — Ewalan was convicted of first degree assault domestic

violence while armed with a firearm. He argues that the trial court abused its

discretion in denying his motions for new counsel, erred in declining to instruct the

jury on a lesser included offense, and abused its discretion in admitting evidence

under ER 404(b). He also contends that he received ineffective assistance of

counsel. We affirm.

                                      FACTS

       Joseph Ewalan and Maureen Mwaniki married in Kenya in 2010. During

that time Ewalan worked as a police officer. They immigrated to the United States

in 2011. Once here, Ewalan first worked as a security guard. Ewalan and Mwaniki

had two children together. At the time of trial, their children were five and three

years old.
No. 75619-2-1/2



      In 2015, Ewalan and Mwaniki began having problems in their marriage.

Mwaniki testified that Ewalan threatened her, and she reported him to police

several times. Mwaniki moved out of their home and filed for a dissolution of the

marriage. By court order, Ewalan had the children every other weekend and on

Thursday afternoons. The court order stated that Ewalan and Mwaniki would meet

at McDonald's in Lake Stevens to exchange their children. The order also dictated

that Ewalan and Mwaniki were to communicate only by text or e-mail.

      On the evening of November 12, 2015, Mwaniki went to the usual

McDonald's to pick up the children from a Thursday afternoon with Ewalan.

Mwaniki testified that Ewalan approached her in the parking lot, yelling at her in

Swahili. She testified that Ewalan then pulled out his gun and pointed it at her

head. Mwaniki testified that she pushed EwaIan's shoulder and he shot the gun.

Mwaniki did not see where the bullet went. Mwaniki then ran with her children into

the McDonald's, yelling for help. Inside McDonald's, someone handed Mwaniki a

phone to tell a 911 operator what happened.

      Ewalan was charged with first degree assault domestic violence while

armed with a firearm. Ewalan filed a motion for new counsel nearly seven months

before trial commenced. About his attorney, Ewalan told the court, "I don't trust

her anymore" and "it looks like she is working with the State." The court denied

EwaIan's motion. Less than a month after his first motion, Ewalan again moved

for new counsel. In his motion, Ewalan told the court that his counsel was "torn




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No. 75619-2-1/3



between the State and client she is supposed to represent." The trial court denied

the motion.

       The jury found Ewalan guilty. The court imposed a standard range

sentence. Ewalan appeals.

                                   DISCUSSION

       Ewalan makes four arguments. First, he argues that the court erred in

denying his motions for substitution of counsel. Second, he argues that defense

counsel provided ineffective assistance by failing to investigate and retain an

independent firearms expert. Third, he argues that the trial court erred in declining

his proposed jury instruction on the lesser included offense of unlawful display of

a weapon. Fourth, he argues that the trial court abused its discretion in admitting

prejudicial evidence under ER 404(b).

       Ewalan makes two additional claims of ineffective assistance of counsel in

a statement of additional grounds for review (SAG).

  I.   Motions for New Counsel

       Ewalan first argues that the trial court erred in denying his two motions for

new counsel. He contends that the trial court's failure to address the extent of the

attorney-client conflict is a structural error that requires this court to reverse his

conviction.

       The essential aim of the Sixth Amendment is to guarantee an effective

advocate for each criminal defendant rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he prefers. In re Pers. Restraint of




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No. 75619-2-1/4



Stenson, 142 Wn.2d 710, 725-26, 16 P.3d 1(2001). To justify appointment of new

counsel, a defendant must show good cause to warrant substitution of counsel,

such as a conflict of interest, an irreconcilable conflict, or a complete breakdown

in communication between the attorney and the defendant. State v. Varga, 151

Wn.2d 179, 200, 86 P.3d 139(2004). Generally, a defendant's loss of confidence

or trust in his counsel is not sufficient reason to appoint new counsel. Id. On

appeal, we review a trial court's decision to deny new court appointed counsel for

abuse of discretion. Id.

       In Stenson, the Washington Supreme Court adopted the Ninth Circuit Court

of Appeals test to determine whether an irreconcilable conflict exists justifying the

substitution of counsel. 142 Wn.2d at 723-24. The factors in the test are (1) the

extent of the conflict,(2) the adequacy of the inquiry, and (3) the timeliness of the

motion. Id. at 724. An irreconcilable conflict occurs when the breakdown of the

relationship results in the complete denial of counsel. Id. at 722.

       Ewalan contends that the trial court failed to adequately inquire into his

alleged conflict with counsel or the breakdown in their communication.             He

complains that, in response to his first motion, the court stated its familiarity with

his attorney, noted that she was a "'worthy advocate,'"and failed to inquire further.

Ewalan further complains that, in response to his second motion, the court abruptly

denied the motion without argument and did not permit him to explain his reasons

for the motion.




                                             4
No. 75619-2-1/5



       A trial court conducts adequate inquiry by allowing the defendant and

counsel to express their concerns fully, and formal inquiry is not always essential

where the defendant otherwise states his reasons for dissatisfaction on the record.

State v. Schaller, 143 Wn. App. 258, 271, 177 P.3d 1139 (2007). Here, in a

proceeding on January 28, 2016, the court invited EwaIan to state his reasons for

moving for new counsel.

       Ewalan told the judge that he was not content with the way counsel was

handling his case. He recounted how, when he was first booked, his attorney told

him that his release depended on whether he had a verified address, a criminal

history, and the nature of his case. He then complained that counsel had not filed

his health records, although he stated that she moved three times for his medical

release. He also described in length his health concerns at the jail. He was

dissatisfied with how his attorney handled these concerns after he told her that he

lost an additional 15 pounds, after an initial loss of 22 pounds in jail. Further, he

claimed that counsel lied to him and denied that she told him previously that the

State was testing his gun. And, he stated that he did not trust his attorney anymore

and thought that she was "working with the State," partly because she informed

him how the State was building its case.

       The judge asked defense counsel and the prosecutor to comment on

EwaIan's concerns. Defense counsel stated that she could not respond because

she did not want to violate the attorney-client privilege. The prosecutor asked the




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No. 75619-2-1/6



court to deny the motion, and stated that EwaIan was not happy with the evidence

against him and was blaming his attorney for it.

       The court told EwaIan that his attorney was a worthy advocate who

represents her clients and their interests. Then, it stated:

      My belief is, in relation to the law, while the standard is that there has
      to be a conflict of interest and irreconcilable conflict or a complete
      breakdown in communications, I don't believe that's an exhaustive
      list.

          The first thing I hear you saying is that you're upset because you
      weren't released on your personal recognizance and you didn't like
      the questions that your attorney asked you. The questions that she
      asked you were completely appropriate, because the court has to
      make a determination whether or not they're going to release you.
      Ties to the community is one of the issues that needs to be
      addressed, so the questions that she asked you were appropriate.

           Another issue is you said that the State continues to process the
       case. In these types of serious charges and violent crimes, that
       happens often. So as the additional discovery comes in, by your
       indication you've known and been advised about it from your own
       attorney.

The court went on to express concern with EwaIan's food claims. Defense counsel

advised the court that the jail provided EwaIan with a vegetable soup as the court

had ordered previously, and that the jail did not have any concerns with continued

weight loss.

       At the March 4 proceeding on EwaIan's second motion, the court again

invited EwaIan to address his concerns about his counsel. The court, after

acknowledging receipt of EwaIan's motion to "appoint private counsel" asked

Ewalan, "Is there anything you wanted to add to your written motion?" In answer

to the court's question, EwaIan stated that he did not want his children to be



                                             6
No, 75619-2-1/7



involved in the case. The court asked defense counsel and the State if they had

anything to add, and they both stated that they did not. The court stated that it had

reviewed Ewalan's motion and, because it did not see anything that would justify

removing counsel, it denied the motion.

       In each of the hearings on Ewalan's two motions for new counsel, the judge

allowed Ewalan and counsel to fully express any concerns. Ewalan fails to

establish that the inquiry was inadequate. And, Ewalan fails to demonstrate a

conflict of interest, an irreconcilable conflict, or a complete breakdown in

communication requiring substitution of counsel. At the January proceeding,

Ewalan indicated a general loss of trust and dissatisfaction with counsel's handling

of the case. After the first motion, the trial court determined that counsel had

communicated appropriately with Ewalan. The second motion did not provide

support for Ewalan's claim that defense counsel was "torn between the State and

client." Because a defendant's general dissatisfaction and distrust of counsel is

not sufficient basis to appoint new counsel, Ewalan's claims did not necessitate

the substitution of counsel. See Varga, 151 Wn.2d at 200-01.

       The trial court did not abuse its discretion in denying Ewalan's motions for

new counsel.

 II.   Ineffective Assistance of Counsel

       Ewalan claims that trial counsel provided ineffective assistance by failing to

investigate the case and retain an independent firearms expert.




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No. 75619-2-1/8



       The Sixth Amendment right to counsel includes the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed.2d 674 (1984). In order to prevail on a claim of ineffective

assistance of counsel, the defendant must demonstrate (1) deficient performance,

that his attorney's representation fell below the standard of reasonableness, and

(2) resulting prejudice, that but for the deficient performance, the result would have

been different. State v. Hassan, 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009).

If a defendant fails to establish either prong, we need not inquire further. Id. at

217. To establish deficient performance, the defendant has the heavy burden of

showing that his attorney made errors so serious that counsel was not functioning

as the counsel guaranteed the defendant by the Sixth Amendment. Id.

       This court approaches an ineffective assistance of counsel argument with a

strong presumption that counsel's representation was effective.             State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant has the

burden to show that based on the record, there are no legitimate strategic or

tactical reasons for the challenged conduct. Hassan, 151 Wn. App. at 217.

       EwaIan argues that trial counsel failed to adequately investigate the case

because for the first time, mid-trial, she argued that an independentfirearms expert

was necessary. He cites to Hinton v. Alabama,            U.S. —, 134 S. Ct. 1081,

188 L. Ed. 2d 1(2014).

       In Hinton, the Supreme Court found that defense counsel's performance

was deficient because of an inexcusable mistake of law. Id. at 1088-89. There,




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No. 75619-2-1/9



because counsel failed to understand the resources that state law provided him,

he hired an expert that he himself deemed inadequate. Id. at 1089. The court

stated explicitly:

              We wish to be clear that the inadequate assistance of counsel
       we find in this case does not consist of the hiring of an expert who,
       though qualified, was not qualified enough. The selection of an
       expert witness is a paradigmatic example of the type of "strategic
       choic[e]" that, when made "after thorough investigation of [the] law
       and facts," is "virtually unchallengeable." We do not today launch
       federal courts into examination of the relative qualifications of
       experts hired and experts that might have been hired.

       Id. (alterations in original)(internal citation omitted)(quoting Strickland, 466

U.S. at 690).

       Here, at trial the State asked its crime lab expert,"Can you tell us about the

ease or difficulty of getting that gun -- the bullet into the chamber while it's in a

holster, if there wasn't one in there to begin with?" When the expert began

speaking about the design of EwaIan's holster, defense counsel objected. Out of

the presence of the jury, defense counsel argued that the expert would be testifying

to an opinion about EwaIan's holster that he had not disclosed previously. Counsel

stated that after her pretrial interview with the expert, she decided not to contact

an independent expert. She added, "I think given the additional opinion and the

direct weight it has on Mr. EwaIan's prior statement to detectives, as well as the

defense of this case, it would be material and I would have hired an independent

expert to evaluate the opinion." Ultimately, the State withdrew the question to the

expert.
No. 75619-2-1/10



       EwaIan's claim is similar to the ineffective assistance claim in In re Pers.

Restraint of Liu, 188 Wn.2d 525, 397 P.3d 90(2017). Liu claimed that his counsel

should have hired a scent tracking expert to discredit the State's expert testimony.

Id. at 545. The court noted that generally the decision whether to call a particular

witness is a matter for differences of opinion and therefore presumed to be a matter

of legitimate trial tactics. Id. It found that, because counsel did not or could not

have known about the State's expert's surprise testimony, counsel's strategy to

discredit the evidence through cross-examination alone was not unreasonable. Id.

       As in Liu, EwaIan's counsel's cross-examination of the State's expert

reveals she had a plan to discredit the State's testing of the evidence. In cross,

she highlighted the expert's limited testing of EwaIan's gun, and specifically that

there had been no DNA (deoxyribonucleic acid) testing. This case differs from

Hinton because, here, defense counsel's decision to not hire an independent

expert was not due to a mistake of the law. This was a legitimate trial tactic based

on what she knew was at issue.          When surprised by a new opinion, she

demonstrated appropriate skill and knowledge, objecting, noting the new issue

would have prompted her to hire an expert, noting the prejudice, and asking the

court to exclude the elicited opinion. Counsel's objection prompted the State to

withdraw the question. EwaIan has failed to show how counsel's decision to not

hire an independent expert was error or prejudicial.

      We find that counsel's decision to not hire an independent firearms expert

was not ineffective assistance of counsel.




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No. 75619-2-1/11



 III.   Lesser Included Offense Jury Instruction

        Next, EwaIan argues that the trial court erroneously refused to instruct the

jury on the lesser included offense of unlawful display of a weapon.

        The right to a lesser included offense instruction is statutory, codified at

RCW 10.61.006. State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357(2015). In

State v. Workman,90 Wn.2d 443, 447-48, 584 P.2d 382(1978), the court set forth

a two-prong test to determine whether a party is entitled to an instruction on a

lesser included offense under RCW 10.61.006. Under the first prong of the test

(the legal prong), the court asks whether the lesser included offense consists solely

of elements that are necessary to conviction of the greater, charged offense.

Condon, 182 Wn.2d at 316. Under the second prong (the factual prong), the court

asks whether the evidence presented in the case supports an inference that only

the lesser offense was committed, to the exclusion of the greater, charged offense.

Id. The requesting party is entitled to the lesser included offense instruction when

the answer to both questions is yes. Id.

        This court reviews a trial court's decision to give a jury instruction de novo

if based upon a matter of law, or for abuse of discretion if based upon a matter of

fact. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017).

Thus, where the parties' disagreement about an instruction is based on a factual

dispute, it is reviewed for an abuse of discretion. Id. To determine whether to give

an instruction, the trial judge must merely decide whether the record contains the

kind of facts to which the doctrine applies. Id.




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No. 75619-2-1/12



       Here, Ewalan and the State agree, and are correct, that unlawful display of

a weapon, codified at RCW 9.41.270(1), is a lesser included offense of assault in

the first degree with a firearm, codified at RCW 9A.36.011(1)(a). See State v.

Prado, 144 Wn. App. 227, 243, 181 P.3d 901 (2008)(finding unlawful display of a

weapon to be a lesser included offense of assault in the first degree). Ewalan

could not commit first degree assault without committing unlawful display of a

weapon, so the first (legal) prong of the Workman test is met.

       In order to satisfy the factual prong, the evidence must support an inference

that Ewalan committed only the crime of unlawful display of a weapon. See Prado,

144 Wn. App. at 243. The court views the supporting evidence in the light most

favorable to the party requesting the lesser included offense instruction. Condon,

182 Wn.2d at 321.

       A person is guilty of assault in the first degree if, with intent to inflict great

bodily harm, he assaults another with a firearm. RCW 9A.36.011(1)(a). Three

definitions of assault are recognized in Washington: (1) an unlawful touching

(actual battery); (2) an attempt with unlawful force to inflict bodily injury upon

another, tending but failing to accomplish it (attempted battery); and (3) putting

another in apprehension of harm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d

439 (2009).

      The statute for unlawful display of a weapon provides: it is "unlawful for any

person to carry, exhibit, display, or draw any firearm . . . in a manner, under




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No. 75619-2-1/13



circumstances, and at a time and place that either manifests an intent to intimidate

another or that warrants alarm for the safety of other persons." RCW 9.41.270(1).

       Here, the court declined to instruct the jury on EwaIan's proposed lesser

included offense of unlawful display of a firearm because it did not want to nullify

testimony from witnesses other than Ewalan and Mwaniki. Mwaniki testified that

Ewalan approached her while yelling, pulled out his gun, pointed it at her head,

and that he shot the gun. A McDonald's employee who was outside at the time of

the incident testified that she saw a spark and heard a woman screaming "he's got

a gun." The employee also testified that, after she saw the spark and heard a loud

bang,she saw the woman putting her hands up to cover herself and the man going

towards the woman. Navy Lieutenant Andrew Darrah testified that he heard a

gunshot and then saw a woman and a child screaming and running towards the

McDonald's. Darrah testified that, after the gunshot, he saw the man raise and

point the gun in the "general direction" of the woman. It found that Darrah's

testimony was inconsistent with giving the lesser included offense.

       Ewalan claims that he presented sufficient facts supporting the lesser

instruction of unlawful display of a weapon. And, Ewalan distinguishes this case

from Prado. In Prado, the court found that the evidence did not support an

inference that only the unlawful display statute was violated because the defendant

stated that he intended to touch the victim with his knife. 144 Wn. App. at 243-44.

Ewalan is correct that he did not testify as Prado did, that he intended to harm

Mwaniki. Ewalan testified that Mwaniki tried to take his gun out of his holster and




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No. 75619-2-1/14



the gun fired while they were struggling over it. EwaIan testified, "I can't really tell

you whose finger was on the trigger. I can't really tell you. All what I know is that

it fired. So I can't say it was me or it was [Mwaniki]." EwaIan's testimony does not

affirmatively establish that Mwaniki fired the gun. But, it is undisputed that the gun

was fired. Because firing the gun is more than displaying it, his testimony is

inconsistent with his requested lesser offense instruction.

       Further, given the testimony of the third parties who contradicted EwaIan's

version of events, the cumulative evidence does not support an inference that only

unlawful display of a weapon was committed. The jury would have had to

disbelieve the cumulative evidence to find the lesser offense. " 'It is not enough

that the jury might simply disbelieve the State's evidence.' " State v. Perez-

Cervantes, 141 Wn.2d 468,481,6 P.3d 1160(2000)(quoting State v. Fowler, 114

Wn.2d 59, 67, 785 P.2d 808 (1990)).

       The trial court did not abuse its discretion in finding that EwaIan was not

entitled to the lesser included offense instruction.

IV.    ER 404(b) Evidence

       EwaIan argues that the court abused its discretion in admitting evidence of

EwaIan's prior threats to Mwaniki under ER 404(b). Specifically, Ewalan argues

that the court should not have admitted Mwaniki's testimony that EwaIan had made

threats to Mwaniki and that she reported him to police. And, he contends it should

not have admitted testimony that EwaIan had told Mwaniki in the past that nothing

would happen to him because he was formerly a police officer.




                                             14
No. 75619-2-1/15



       Under ER 404(b), evidence of other crimes, wrongs, or acts is

presumptively inadmissible to prove character and show action in conformity

therewith. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). However,

when demonstrated, such evidence may be admissible for other purposes"'such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident' ". Id. (quoting ER 404(b)). If admitted for other

purposes, a trial court must identify that purpose and determine whether the

evidence is relevant and necessary to prove an essential ingredient of the crime

charged. Id. at 258-59.     Evidence is relevant and necessary if the purpose of

admitting the evidence is of consequence to the action and makes the existence

of the identified fact more probable. Id. at 259.

       To admit prior misconduct evidence, it must be necessary to prove a

material issue. Id. at at 262. Therefore, such evidence is only necessary to prove

intent when intent is at issue or when proof of the doing of the charged act does

not conclusively establish intent. Id. Evidence of prior threats is admissible to

show motive or malice. Id. at 260.

       We review a trial court's decision to admit or exclude evidence under ER

404(b)for an abuse of discretion. State v. Arrendondo, 188 Wn.2d 244, 256, 394

P.3d 348 (2017). To reverse we must find the decision is unreasonable or based

on untenable reasons or grounds. Id. at 355.




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No. 75619-2-1/16



      During motions in limine, the State first articulated the reasons to admit

Mwaniki's testimony that EwaIan had told her that nothing would happen to him

because he had been a police officer:

           I think the rule allows this type of evidence to show motive and
      intent. That's what [ER] 404(b) talks about, that the jury needs to
      understand the context between these people, that this just didn't
      happen out of the blue with nothing -- no information to help the jury
      understand what is really going on.

           The idea that he made statements to Ms. Mwaniki before saying
      that nothing would happen to him, the State believes is important for
      the jury to understand when he pulled out that gun that day that it's
      likely what was in his mind, that nothing was going to happen to him,
      because was a prior police officer.

      Ewalan objected to the testimony, stating that it was not evidence of intent

or motive and, because no one knew when the statements were made, they had

no probative value. The court denied EwaIan's motion and stated that it would

allow the testimony.

      On a subsequent motion in limine, the State asked the court to allow

Mwaniki to testify that she had reported to police that she was afraid of EwaIan,

and that EwaIan had made threats to her. It argued,

            I think it is important for the jury to hear that she felt that he had
      made threats along those lines to her in the past, that -- you know,
      it's in the context of this divorce.



          The fact that she had been threatened before, the fact that the
      police had been called before, and some context leading up to this
      incident is all the State is trying to get into, without getting into details
      of each particular time she called the police, for example.




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No. 75619-2-1/17


           I am expecting. . . Ms. Mwaniki to testify that the defendant had
       threatened her in the past and made comments along the lines that
       he thought he could get away with it and that that caused fear in her.

       Ewalan again argued that prior threats to Mwaniki were not particularly

relevant and were extremely prejudicial. The court allowed the evidence, finding

that the objections against it were a matter of weight, not admissibility. But, the

court also admitted the evidence with the extra limitation that the State would not

elicit the specific details of Ewalan's alleged threats.

       Ewalan contends that the trial court abused its discretion in admitting the

evidence without conducting the required balancing test or articulating a reason

supporting the admission. Under ER 404(b) to admit evidence of other crimes,

wrongs, or acts, the trial judge is obligated to:(1) identify the purpose for which the

evidence is sought to be introduced; and (2) determine whether evidence is

relevant to prove an essential element of the crime charged. State v. Dennison,

115 Wn.2d 609, 628, 801 P.2d 193 (1990). The trial judge must weigh on the

record the probative value of the relevant evidence against its prejudicial effect.

Id.

       Here,the trial court did not explicitly state the balancing it applied. However,

the State articulated the purpose of the testimony and Ewalan argued that its

prejudice outweighed its probative value. We can infer that the court relied solely

on those arguments because its ruling was directly afterwards.             The court

concluded that Ewalan's arguments went to the weight of the evidence, not to

whether it was admissible. Evidence of Ewalan's prior threats was relevant to

show his motive and intent in holding the gun, and to counter Ewalan's argument



                                             17
No. 75619-2-1/18



that the gun fired by mistake or accident. The State was required to prove that

EwaIan assaulted the victim with a firearm, and that he did so to inflict great bodily

harm. The State also had to prove that Mwaniki was in reasonable apprehensive

and imminent fear of bodily injury. EwaIan's prior threats were highly probative of

the required elements.

       The trial judge expressed concern that Mwaniki's testimony would not get

"into any ancient history" and ruled that Mwaniki would not be allowed to get into

specifics of her prior complaints to the police. This shows that the court noted the

potential probative value of allowing the evidence against the prejudicial effect.

While the record could and should have been more explicit, it is nonetheless

adequate for our review. We find that the court did not abuse its discretion in

admitting evidence that EwaIan had made threats to Mwaniki, told Mwaniki that

nothing would happen to him as a former police officer, and that Mwaniki had

reported Ewalan to police.

 V.    Statement of Additional Grounds

       EwaIan also makes two claims of ineffective assistance of counsel in a

SAG. First, he argues that counsel was ineffective when she failed to object to

video testimony at trial, because the court had previously ruled that the parties

would read the transcript of the video testimony, in lieu of playing the video.

Second, he argues that she was ineffective when she failed to object to testimony

of a "no contact order" against EwaIan, because the court had previously ruled the

testimony inadmissible.




                                             18
No. 75619-2-1/19



       Further, in an addendum to his statement of additional grounds for review,

EweIan assigns error to (1) the court admitting evidence under ER 404(b) of his

prior bad acts, and (2)the court denying his motion for substitution of counsel. The

arguments in the addendum echo those in EwaIan's briefing and, as addressed

above, do not provide any grounds for relief.

   A. Video Testimony

       EwaIan argues that his counsel was ineffective when she failed to object to

the playing of the video testimony.

       Pretrial, Ewalan had several objections to specific portions of the

videotaped testimony of Darrah. The court addressed its concerns that it would

not be able to redact certain portions of the tape. EwaIan responded, "Given the

fact that we can't redact it, I don't see any other better way, except for reading the

transcript to the jury." The court granted the reading of the transcript instead of

playing the video. Then, EwaIan objected to a question in the testimony transcript

that indicated that there had been a previous trial. The court granted the objection,

redacting the question in the testimony. But, the court overruled all of EwaIan's

subsequent objections to the transcript of the videotaped testimony.

       At trial, it appears that the court changed course and allowed Darrah's

videotaped deposition to play for the jury. Unless the question that the trial court

redacted from the transcript was played for the jury, it is unclear that counsel would

have had a reason to object to the video over the transcript. The record does not

indicate whether that portion was played or not. EwaIan objected to the admitted




                                             19
No. 75619-2-1/20



testimony going back to the jury room. The parties stipulated that neither the

transcript nor the video testimony would go back to the jury.

       In his SAG, Ewalan argues that playing the video testimony was very

prejudicial. He does not appear to argue that the court erred when it overruled his

pretrial objections, and he does not articulate why playing the video was more

prejudicial than the admitted transcript testimony. There is no evidence in the

record that the court did not follow its previous ruling to redact the scheduling

question. Ewalan has not articulated anything beyond mere prejudice inherent in

adverse evidence. He has not established how his counsel was ineffective.

   B. No Contact Order

       Ewalan next argues that counsel was ineffective when she failed to object

to Mwaniki's testimony about a no contact order against Ewalan. Citing the record

on July 11, he claims that the court had ruled previously that the testimony was

inadmissible. The "no contact order" to which Ewalan refers is the temporary

parenting plan, which contained restrictions on contact between Ewalan and

Mwaniki during exchanges of the children, as described above.

       Pretrial, Ewalan objected to the admission of that order, but the court

admitted the exhibit. After the order was admitted, Ewalan asked if the State was

going to be allowed to inquire about prior incidents where Mwaniki alleged Ewalan

had violated the order. The State indicated that it was not interested in raising

those incidents, and the court barred that potential line of questions.




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No. 75619-2-1/21



       At trial, the State asked Mwaniki about the temporary parenting plan that

was in place on November 12, 2015, when the alleged assault occurred. The State

did not elicit testimony from Mwaniki about whether EwaIan violated the order prior

to the alleged incident.

       EwaIan has not established that counsel was ineffective. His counsel

objected to the admission of the temporary parenting plan, but the court overruled

the objection. Counsel had no reason to object when Mwaniki testified about the

order or the alleged violation on November 12. And, the State did not elicit

testimony that the court had barred. Counsel was not ineffective.

       We affirm.




WE CONCUR:




 Ci   e°1     42 •  TS




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