    IN THE COURT OF APPEALS OF THE STATE OF WASHINUTOl
                                                                                               201AUG - 4
                                                                                                                   9, 57
                                                  DIVISION II                                                               j
                                                                                               STA E
                                                                                                        0rr\\



                                                                                                           Vk (    r



 STATE OF WASHINGTON,                                                            No. 454191-4 II

                                                                                                        QERIV
                                     Respondent,                           UNPUBLISHED OPINION \\


           V.




 DAN A. PHILLIPS,


                                     Appellant.



       BJORGEN, J. —         Dan Phillips appeals his convictions for domestic violence first and


fourth degree assault, first degree unlawful possession of a firearm, and two counts of domestic


violence criminal solicitation to commit first degree murder. Phillips contends that ( 1) .


insufficient evidence supported the domestic violence first degree assault conviction, (2) the trial


court abused its discretion when it denied his motion to sever the trials on the two solicitation


charges    from   each other and   from the   assault charges, (     3) his trial counsel rendered ineffective


assistance by failing t-o move during trial to sever the solicitation and assault charges and by

failing to object to the admission of some evidence, and ( 4) the trial court violated his right to

confront the witnesses against him by limiting cross- examination of one of the State' s witnesses.

          We hold that ( 1)     sufficient    evidence      supported   the   challenged     assault   conviction, (   2)


Phillips   waived   any   claim of error   in the denial   of   the severance motion, ( 3)    Phillips' s attorney did

not render ineffective assistance, and ( 4) the trial court permissibly limited Phillips' s cross-

examination of      the State' s witness.    We   affirm.
No. 45411 -4 -II



                                                                  FACTS


         Phillips' s former girlfriend, Kelly Contraro, arrived at his house in the early hours of

August 1, 2012 to find Phillips               and    his   nephew,    Brandon Phillips, there.'       An argument ensued.


Eventually,          enraged,    Phillips   went    into his     room and returned with a rifle; which         he " put   ...   to


 Contraro'      s]   head, ...    heart....    stomach, [ and] ...        legs" before firing it into the ground just in

front   of   her. Verbatim Report             of   Proceedings ( VRP) ( Sept.      5, 2013) at 957.

         At trial, Contraro, Phillips, and Brandon offered conflicting testimony as to what

happened next, but all agreed that approximately 15 seconds after that first shot, a second shot

was fired that inflicted a grievous wound to Contraro' s leg. In the aftermath of the second shot,

Phillips and Brandon discussed what to do with Contraro, considering dragging her out into the

nearby woods and leaving her there.

         Phillips eventually decided to take Contraro to the hospital and dragged her to her truck,

which he drove into a ditch while backing up. While Phillips was outside the truck, Contraro

called her nephew and his girlfriend, telling them both that Phillips had shot her. Contraro also

called 911 dispatch, stating that she had been shot and naming Brandon as the shooter. Officers

responded and arrested Phillips.


             While jailed for the shooting, Phillips discussed the incident with his cell mate, admitting

that he had shot Contraro but stating that he was " going with" the story that Brandon had shot

her. VRP ( Sept. 5, 2013) at 807. Phillips later told his cell mate that he had real property worth

 a   hundred to 110, 000 dollars"             and said      he   would give   it to the   cell mate   for " tak[ ing]   [ Contraro]

out."   VRP ( Sept. 5, 2013) at 809. Phillips clarified this statement by telling the cell mate that



 We refer to the appellant by his surname and Brandon Phillips by his first name for clarity' s
sake.    We intend no disrespect by doing so.


                                                                      2
No. 45411 -4 -II



  h] e   wanted [    Contraro] dead." VRP ( Sept. 5, 2013)                   at   809. His cell mate declined the offer and


later informed the State about it.


           Phillips had similar conversations with another' inmate who later became his cell mate.


Phillips discussed how he had ended up in jail, admitting that he had shot Contraro in the leg.

According      to Phillips, the shooting           left him " in   a   bad   spot,   legally," but " with [ Contraro] out of

the    picture ...   there   would     be   no witnesses    in his     case."      VRP ( Sept. 5, 2013) at 820.


Consequently, Phillips also offered to give this cell mate real property if he would kill Contraro.

This cell mate also informed police of Phillips' s offer, and police later arranged to record a call

Phillips made to the cell mate where the two confirmed the plan to kill Contraro.


           The State ultimately charged Phillips with domestic violence first degree assault,

unlawful possession of a firearm, two counts of domestic violence criminal solicitation to


commit first degree murder, and domestic violence fourth degree assault.2

           Before trial, the State moved in limine to exclude the testimony of Brandon' s former

girlfriend, whom the defense wanted to testify about a 2009 incident in which Brandon

apparently fired a gun either near her or at her and had been convicted of unlawful possession of

a firearm. Phillips explained that he intended to call the girlfriend only after.cross- examining

Brandon about the episode. When the trial court asked how any testimony from Brandon on the

matter would be relevant, Phillips essentially argued the testimony would show Brandon' s

propensity to        commit assault with a          firearm. When the trial           court   then   asked, "   Well, is


propensity      evidence admissible          for   purposes of     impeachment," Phillips'            s counsel answered, "   No,


it'   s relevant   to my   client' s   defense."     VRP (Aug. 21, 2013) at 107. The trial court ultimately




2 The domestic violence fourth degree assault charge arose from an incident occurring months
before the shooting. The facts              of   the incident   are not relevant        to this   appeal.
No. 45411 -4 -II



granted the State' s motion and prohibited cross- examination of Brandon about the incident or


evidence about it in Phillips' s case -in -chief.


        Phillips moved, before trial, to sever the solicitation charges from the assault charges.


When the trial court denied this motion, he did not renew it at any point during trial.

        At trial, Contraro testified that, just before the shooting, she and Phillips had a fight and

that Phillips responded to the fight by retrieving a gun from his room and threatening her with it.

Contraro acknowledged that she could not see who had fired the shot that hit her leg, because she

curled up into a fetal position and closed her eyes when Phillips began threatening her. She

testified, though, that she believed Phillips had been the shooter, because he had the gun just


before the   shot was   fired.   She admitted that she initially told 911 dispatch that Brandon was the

shooter, but explained this as an irrational desire to protect Phillips, who she had dated for nine


years and who she lived with until he assaulted her in the incident giving rise to the domestic

violence fourth degree assault conviction currently before us.

        Brandon testified that he, Phillips, and Contraro had been the only three people in the

house at the time of the shooting. He also testified that Phillips had become angry with

Contraro, got his gun, and pointed it at Contraro. Brandon testified that he then turned his .head


away and heard a shot. Brandon denied that he shot Contraro.

        Contraro' s nephew and her nephew' s girlfriend both testified about the frantic calls they

had received from Contraro after the shooting. Both testified that Contraro had told them that

Phillips had shot her.


        Both of Phillips' s former cell mates testified against him. Each testified that, during their

incarceration with him, Phillips admitted to shooting Contraro. Both also testified that Phillips

had told them that if they killed Contraro, he      would give   them   real   property. One former   cell
No. 45411 -4 -II



mate stated that Phillips explicitly linked his desire to kill Contraro to a desire to prevent her

from testifying against him. Both former cell mates admitted that they had received reduced jail

time for their cooperation with the State.


       Phillips took the stand in his own defense. He denied shooting Contraro, claiming that

Brandon had done     so.   Phillips offered no testimony about the solicitation charges. The jury

convicted Phillips on all counts. He now appeals.


                                                ANALYSIS


                                    I. SUFFICIENCY OF THE EVIDENCE


        Phillips argues that insufficient evidence supports the domestic violence first degree


assault conviction   because   no witness   testified to seeing Phillips   shoot   Contraro. We disagree,


finding the evidence sufficient.

        Due process requires the State to prove every element of a charged crime beyond a

reasonable doubt before the jury may convict a defendant. State v. O' Hara, 167 Wn.2d 91, 105,

217 P. 3d 756 ( 2009) ( citing U. S. CONST.    amend.   XIV; WASH CONST.       art.   I, § 22; Jackson v.


Virginia, 443 U.S. 307, 311, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979);         In re Winship, 397 U.S.

358, 365- 66, 90 S. Ct. 1068, 25 L. Ed. 2d 368 ( 1970))..     When reviewing a claim that the State

has failed to introduce sufficient evidence to discharge that burden, we view all the evidence in


the light most favorable to the State to determine whether any rational trier of fact could have

found the elements of the crime beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551,


238 P. 3d 470 ( 2010).     A defendant making a sufficiency challenge admits the truth of the State' s

evidence and all inferences that may reasonably be drawn therefrom. Kintz, 169 Wn.2d at 551.

We do not distinguish between circumstantial and direct evidence when determining whether the




                                                      5
No. 45411 -4 -II



State introduced sufficient evidence for a conviction: either suffices to meet the State' s burden.

Kintz, 169 Wn.2d at 551.


          Under RCW 9A.36. 011, a person commits first degree assault, among other ways, if "he

or she, with   intent to inflict   great   bodily   harm ... [      a] ssaults another and inflicts great bodily

harm."    The trial court instructed the jury on only one of the three common law definitions of

assault, actual    battery, informing jurors        that "[   a] n assault is an intentional touching or striking or

shooting   of another person       that is harmful     or   offensive."      Clerk' s Papers at 306. RCW


10. 99. 020( 5), which defines domestic violence as used in the State' s special allegation; provides


that first degree assault is a crime of domestic violence " when committed by one family or

household    member against another." "         Family        or   household    members,"      as relevant here, include


 person sixteen years of age or older who are presently residing together or who have resided

together in the past and who have or have had a dating relationship" as well as " adult persons

who are    presently residing together       or who     have       resided   together in the   past."   RCW


10. 99. 020( 3).


          The State presented sufficient evidence for a rational fact finder to determine that he had


committed domestic violence first degree assault. Two of Phillips' s former cell mates testified


that he   admitted   to shooting Contraro.      Similarly, Contraro' s nephew and his girlfriend testified

to speaking with Contraro shortly after the shooting; both testified that Contraro named Phillips

as the shooter. Contraro herself testified at trial that she believed Phillips had shot her and that


he had done so after threatening her with the rifle. Brandon and Phillips both testified that they

and Contraro were the only three in the house at the time of the shooting, and Brandon denied

that he had fired the shot that struck her. The gun used in the shooting was Phillips' s, and

Phillips, Contraro, and Brandon all testified that Phillips had the gun in his hand shortly before



                                                                C
No. 45411 -4 -II



the shooting. The shooting inflicted a grievous injury on Contraro. In addition, Contraro and

Phillips had shared a romantic relationship in the past and had lived together before the assault.

From this evidence a rational jury could find that the necessary assault,, intent, injury, and

familial or household relationship existed.

        Phillips, nevertheless, argues that without a witness testifying to watching him assault

Contraro, the State presented insufficient evidence, citing State v. Johnson, 90 Wn. App. 54, 73-

74, 950 P. 2d 981 ( 1998).     Johnson, however, held that eyewitness testimony was sufficient for an

assault conviction, which      does   not   imply that   it is necessary for one.   90 Wn. App. at 73- 74.

Johnson does not require that we reverse an assault conviction based on sufficiency grounds

absent an eyewitness testifying that he or she saw the shooting. See Johnson, 90 Wn. App. at 73-

74. Indeed, binding precedent requires us to reject that. argument. Kintz, 169 Wn.2d at 551

 circumstantial evidence sufficient to sustain a conviction in the face of a sufficiency challenge).

                                                 II. SEVERANCE


         Phillips next contends that the trial court abused its discretion when it denied his motion


to sever the solicitation charges from each other and from the remaining offenses. The State

argues that Phillips waived any direct challenge to the trial court' s denial of his motion. We

agree with the State.


         The court rule governing the severance of offenses for trial has specific provisions

governing waiver. Where the trial court denies a pretrial motion for severance, the defendant

must " renew the motion on the same ground before or at the close of all the evidence" at trial to


avoid   waiving any   challenge   to the denial of the motion to sever. CrR 4. 4( a)( 2); State v.


Henderson, 48 Wn.       App.   543, 551, 740 P. 2d 329 ( 1987);      State v. Ben -Neth, 34 Wn. App. 600,

606, 663 P. 2d 156 ( 1983).




                                                           7
No. 45411 -4 -II


          Phillips made a pretrial motion for severance that the trial court denied. He did not renew


his motion at trial either before or at the close of evidence. He thus waived any claim of error

related   to the   denial   of   his   motion       for   severance.            CrR 4. 4( a)( 2);   Henderson, 48 Wn. App. at 551;

Ben -Neth, 34 Wn. App. at 606.

                                        III. INEFFECTIVE ASSISTANCE OF COUNSEL


          Phillips also contends that his counsel rendered ineffective assistance by ( 1) failing to

move to sever the charges at trial in accordance with CrR 4. 4 and ( 2) failing to object to the

admission of the evidence. of solicitation for purposes of Phillips' s assault trial. Both of these


claims fail.


          The state and federal constitutions guarantee criminal defendants the right to effective

                                  3
assistance     from   counsel.         State   v.   Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011), cert. denied,


135 S. Ct. 153 ( 2014).          Prevailing on an ineffective assistance claim requires the defendant to

show    two elements.       Grier, 171 Wn.2d at 32- 33 ( quoting State v. Thomas, 109 Wn.2d 222, 225-

26, 743 P. 2d 816 ( 1987) (            quoting Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 ( 1984))).


          First, the defendant must show that his or her counsel performed deficiently. Grier, 171

Wn.2d     at   32- 33 ( quoting Thomas, 109 Wn.2d                     at   225- 26). To do so, the defendant must establish


that counsel' s performance fell below objective standards of reasonableness. Grier, 171 Wn.2d


at   33 ( quoting Thomas, 109 Wn.2d                  at   225- 26).    Our review is deferential to trial counsel' s


choices, and we strongly presume counsel performed reasonably. Grier, 171 Wn.2d at 33

 quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)).



3 The due process clause of the Fourteenth Amendment to the United States Constitution renders
the Sixth Amendment' s guarantee of the right to counsel applicable to state criminal
proceedings.       Gideon v. Wainwright, 372 U. S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 ( 1963).

                                                                           EV
No. 45411 -4 -II



           Second, the defendant must show that counsel' s deficient performance prejudiced him or


her. Grier, 171 Wn.2d       at   32- 33 ( quoting Strickland, 466 U. S.           at   691).   This requires the


defendant to " establish that `there is a reasonable probability that, but for counsel' s deficient

performance,     the outcome      of   the   proceedings would        have been different."'       Grier, 171 Wn.2d at


34 ( quoting Kyllo, 166 Wn.2d           at   862).    Where the defendant claims that counsel performed


deficiently by failing to make a motion, the defendant, to show prejudice, must show that the

trial court would probably have granted the motion, State v. McFarland, 127 Wn.2d 322, 337

n. 4,   899 P. 2d 1251 ( 1995),   and that had the motion been granted, the jury likely would have

found him or her not guilty beyond a reasonable doubt. State v. Sutherby, 165 Wn.2d 870, 884,

204 P. 3d 916 ( 2009).


A.         Severance


           Phillips first argues that his attorney rendered ineffective assistance by failing to renew

the motion to sever the solicitation charges from each other and from the assault charges at trial.


Assuming that counsel performed deficiently, Phillips' s claim fails because he cannot show that

the trial court would probably have granted the motion. Consequently, he cannot make the

necessary showing of prejudice.


           Washington law " disfavors          separate   trials,"   State v. McDaniel, 155 Wn. App. 829, 860,

230 P. 3d 245 ( 2010),    based on concerns about judicial economy. See State v. Bryant, 89 Wn.

App. 857,     864, 950 P. 2d 1004 ( 1998). However, severance is appropriate where " there is a risk


that the jury will use the evidence of one crime to infer the defendant' s guilt for another crime or




4 Although a failure to renew a motion for severance at trial waives any claim of error in the
denial of a pretrial motion for severance, defendants may raise the issue through an ineffective
assistance of counsel claim.           State   v.   McDaniel, 155 Wn.      App.    829, 859, 230 P. 3d 245 ( 2010).
No. 45411 -4 -II



to infer   a general criminal          disposition."      Sutherby, 165 Wn.2d at 883. Accordingly, CrR 4. 4( b)

provides     that the trial    court " shall grant a severance of offenses whenever ...               the court


determines that severance will promote a fair determination of the defendant' s guilt or innocence


of each offense."



           To determine whether severance is warranted, courts consider four factors:


                1) the   strength of   the State'                      2) the clarity of defenses
                                                    s evidence on each count; (

           as   to each     3) court instructions to the jury to consider each count separately
                          count; (


           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)).


           i. Strength of the State' s Evidence on Each Count


           The first factor requires us to evaluate the strength of the State' s case for each charge.


Where the State presents " strong [ evidence] on each count, there is no necessity for the jury to

base its   finding       of guilt on   any   one count on     the   strength of   the   evidence of another."   State v.


Bythrow, 114 Wn.2d 713, 721- 22, 790 P. 2d 154 ( 1990).


           Phillips contends that the evidence adduced by the State was of differing quality for the

assault and solicitation charges because no one saw him fire the shot that struck Contraro, but


both cell mates testified to witnessing him offer property to kill Contraro. We disagree.

Brandon testified that he did            not   fire the   shot   that struck Contraro.      Contraro testified that she


believed Phillips had shot her and that he was in possession of the firearm just before the


shooting. Phillips and Brandon also testified that they were the only two in.the house with

Contraro at the time she was shot. Both of Phillips' s former cell mates testified that Phillips


admitted to shooting Contraro. The jury' s verdict on the assault charge came down to whether it

believed Brandon, Contraro, and Phillips' s former cell mates, just as its verdicts on the


                                                                    10
No. 45411 -4 -II.



solicitation charges came down to whether it believed the former cell mates. The strength of the


State' s case was similar for each of the charges. This factor does not weigh in Phillips' s favor.


        ii.   Clarity of the Defenses

        The second factor concerns the possibility that failure to sever charges will force

defendants to present antagonistic defenses. The defendant bears the burden of showing

 specific prejudice" from any possible antagonistic defenses. State v. Grisby, 97 Wn.2d 493,

507, 647 P. 2d 6 ( 1982).      The likelihood of prejudice.is " very small" where the defendant offers

identical defenses on each charge. Russell, 125 Wn.2d at 64.


        Phillips contends that he was prejudiced because he defended against the assault charge


on self-defense grounds, but against the solicitation charges on denial grounds. The record does


not bear out this claim. Phillips defended against the assault charge at trial by denying that he

had shot Contraro. He defended against the solicitation charges by impeaching the State' s

witnesses, implying with questions that they had fabricated their testimony in order to bargain

for reduced sentences. That amounts to a defense of denial. See State v. Hernandez, 58 Wn.


App.   793, 799, 794 P. 2d 1327 ( 1990),         overruled on other grounds by State v. Kjorsvik, 117

Wn.2d 93, 812 P. 2d 86 ( 1991).       Phillips' s defenses were clear and consistent. There was little, if


any, possible prejudice to Phillips related to the presentation of his defenses. This factor weighs

against severance.




         iii. Jury Instructions

         The third. factor examines the trial court' s jury instructions. Here, the trial court

instructed the jury that it "must decide each count separately" and that its " verdict on one count

should not control [   its]   verdict on   any   other count."   Clerk'   s   Papers   at   302. We presume that


jurors follow such instructions, State v. Swan, 114 Wn.2d 613, 661- 62, 790 P. 2d 610 ( 1990),




                                                          11
No. 45411 -4 -II



meaning that this factor weighs against severance unless the defendant overcomes that

presumption. Given that presumption, this factor weighs against severance. See McDaniel, 155


Wn. App. at 861.

          Phillips argues that we should disregard the presumption that jurors follow instructions,


citing Sutherby, 165 Wn.2d at 884, and State v. Harris, 36 Wn. App. 746, 750, 677 P. 2d 202

 1984).    These cases, however,' were sex offense cases, and both recognized that the unique


nature of that type of offense could often lead jurors to disregard the trial court' s instructions


Sutherby, 165 Wn.2d at 884, 886- 87; Harris, 36 Wn. App. at 752 ( quoting State v. Saltarelli, 98

Wn. 2d 358, 364, 655 P. 2d 697 ( 1982)).      Phillips was not charged witha sex offense, and he


makes no argument why the charges made against him were so inflammatory that we should

treat them in a manner similar to the offenses at issue in Sutherby and Harris. His argument

fails.


          iv. Cross -admissibility

          The final factor looks to whether the evidence to support one charge was admissible on


the others. There is no prejudice to the defendant in trying offenses together where the State

could admit the evidence in each of the separate trials. State v. Smith, 74 Wn.2d 744, 756, 446


P. 2d 571 ( 1968),    vacated in part by Smith v. Washington, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed.

2d 747 ( 1972)..


          Several rules are relevant to the admissibility of the evidence involved here. ER 402

provides   that "[   e] vidence which is not relevant is not admissible." 5 ER 403 provides that the




5 Relevant evidence is defined by ER 401, which provides that evidence is relevant if it has " any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence."


                                                     12
No: 45411 -4 -II



trial court may exclude even relevant evidence " if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury" or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Finally, ER 404( b) forbids the admission of evidence to show a person' s propensity to act a

certain   way to   urge a verdict      based   on   that propensity. 6   However, ER 404( b) provides that

evidence " may be admissible for other purposes, such as [ to show] proof of motive, opportunity,

intent,   preparation, plan,       knowledge,   identity,     or absence of mistake or accident."        The list of


permissible uses for evidence in ER 404( b) is not exclusive; evidence is admissible under the


rule if it " serves a legitimate purpose, is relevant to prove an element of the crime charged, and,


on    balance, the   probative value of     the     evidence outweighs     its   prejudicial effect."   State v.


DeVries, 149 Wn:2d 842, 848, 72 P. 3d 748 ( 2003).


          Evidence of the solicitation offenses would have been cross -admissible in a separate trial


for the   assault charges.     Evidence that a defendant has attempted to prevent a witness from


testifying is relevant and probative because it shows consciousness of guilt. State v. Kosanke, 23

Wn.M 211, 215, 160 P. M 541 ( 1945).                 Accordingly, courts have found that ER 401, ER 403,

and ER 404(b) do not require exclusion. of such evidence.7 State v. McGhee, 57 Wn. App. 457,

459- 62, 7 88 P. 2d 603 ( 1990).

          Phillips argues that evidence of the solicitation offenses was not admissible in the assault

trials because his intent to kill Contraro was irrelevant to his state of mind at the time of the




6,
     ER 404( b)   provides,   in   relevant part,   that "[   e] vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith."

7 ER 404( b) encompasses the relevance concepts found in ER 401 and ER 402 as well as the
balancing of the probative value of evidence against its prejudicial effect found in ER 403.
De Vries, 149 Wn.2d at 848.

                                                                13
No. 45411 -4 -II



assault, overly prejudicial, and intended to show his propensity to commit criminal offenses.

However, the State was not offering the evidence to show his state of mind at the time of the

assault: it offered the evidence to show his consciousness of guilt after the fact. It was relevant


and admissible     for that   purpose.    Konsanke, 23 Wn.2d        at   215. Further, the fact that the evidence


was adverse to Phillips does not make it unfairly prejudicial, State v. Gould, 58 Wn. App. 175,

183, 791    P. 2d. 569 (   1990), and ER 403 did not require its exclusion. ER 403 requires that the


unfairly prejudicial effect of evidence outweigh its probative value before the trial court excludes

it. As noted above, this evidence was probative in that it showed Phillips' s consciousness of


guilt. McGhee, 57 Wn. App. at 459. With regard to Phillips' s ER 404(b) claim, the State did not

introduce the evidence to show that Phillips had a propensity to commit criminal acts. Again, it

sought to introduce it for the legitimate purpose of showing Phillips' s consciousness of guilt.

Neither ER 403 nor ER 404( b) required exclusion of the solicitation evidence. McGhee, 57 Wn.


App. at 460- 62.

          In addition, evidence of each solicitation would have been cross -admissible with regard


to the   other solicitation offense.      Evidence that   a "[   d] efendant committed markedly similar acts

of misconduct against similar victims under similar circumstances" is admissible to show a


common scheme or plan.           State   v.   Lough, 125 Wn.2d 847, 852, 889 P. 2d 487 ( 1995).       Here


Phillips made the same offer, to kill Contraro, in exchange for real property, to two separate cell

mates. He thus committed two markedly similar acts of misconduct against the same victim

under markedly similar circumstances. Under this authority the evidence of each would be

cross -admissible in a trial for the other to show a common scheme or,plan.


          Phillips contends, though, that under Harris, 36 Wn. App. at 751- 52, evidence of one

solicitation was not cross -admissible with regard to the other under the common scheme or plan




                                                           14
No. 45411 -4 -II



exception   to ER 404( b).   Harris applied a restrictive version of the common scheme or plan


exception to ER 404( b) incompatible with the Supreme Court' s later explanation of the


exception in Lough. Compare Harris, 36 Wn. App. at 751- 52 with Lough, 125 Wn.2d at 852- 61.

Evidence of each solicitation offense was admissible in the trial for the other solicitation offense


under the holding in Lough, and we are bound by that holding.

       v. Balancing the Severance Factors

       Balancing the factors used to determine the propriety of severance weighs plainly against

it. Phillips has therefore failed to show that the trial court would probably have granted the

motion to sever if he had renewed it. With that, he has failed to make the showing of prejudice

necessary for an ineffective assistance claim. See McFarland, 127 Wn.2d at 337 n.4.

B.     Failure to Object


       Phillips also argues that counsel was ineffective for failing to object to the admission of

evidence of the two solicitation offenses for purposes of adjudicating the assault charge and by

failing to object to the admission of evidence about each solicitation offense for purposes of

adjudicating the charge for the other. We disagree, because Phillips cannot show prejudice.

       As discussed above in the severance context, the evidence that Phillips claims his counsel


should have objected to was admissible. The trial court, therefore, would have denied any

objection, and Phillips cannot show prejudice. McFarland, 127 Wn.2d at 337 n.4.


                                     IV. CONFRONTATION CLAUSE


        Finally, Phillips contends that the trial court abridged his right to confront witnesses

against him by preventing him from cross- examining Brandon about a conviction for unlawful




                                                   15
No. 45411 -4 -II



possession of a firearm. We disagree, because the evidence Phillips wished to present was


inadmissible and unduly prejudicial propensity evidence that the trial court properly excluded.$

          Both the state and federal constitutions guarantee criminal defendants the right to

                                           9"'
confront witnesses against        them.          U. S. CONST.   amend.   VI; WASH. CONST.     art.   I, § 22. "'[    A]


primary interest   secured      by [ the   confrontation clause]   is the   right of cross- examination."'          Davis


v.   Alaska, 415 U. S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ( 1974) (            quoting Douglas v.

Alabama, 380 U. S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 ( 1965)).                 The right to cross-


examine witnesses has historically included the right to discredit them through impeachment

with, among other things, evidence of prior criminal convictions. Davis, 415 U. S. at 316.

          ER 611( b) provides the trial court with the discretion to limit the scope of cross-

examination.     State   v.   Darden, 145 Wn.2d 612, 620- 21, 41 P. 3d 1189 ( 2002). A trial court


abuses its discretion when it exercises that discretion in a manifestly unreasonable manner or

based on untenable grounds or for untenable reasons. State v. Sisouvanh, 175 Wn.2d 607, 623,


290 P. 3d 942 ( 2012) ( quoting       State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003)).

Impermissibly limiting the scope of cross- examination in violation of the confrontation clause

would be an abuse of the trial court' s discretion. State v. Perez, 137 Wn. App. 97, 105, 151 P. 3d

249 ( 2007).




8 We do not address the State' s waiver argument because we hold that the trial court did not err
in limiting Phillips' s cross- examination of Brandon.

9 Under the due process clause of the Fourteenth Amendment to the United States Constitution,
the Sixth Amendment' s confrontation clause applies in state criminal proceedings. Pointer v.
Texas, 380 U. S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 ( 1965).


io Phillips does not argue that article I, section 22 provides greater protection than the Sixth
Amendment. Consequently, we analyze his claim only under the Sixth Amendment. State v.
Gonzalez -Morales, 91 Wn. App. 420, 424 & n.2, 958 P. 2d 339 ( 1998).



                                                            16
No. 45411 -4 -II



               Whether the trial court has impermissibly restricted cross- examination, thereby infringing

the defendant' s right of confrontation, depends on two factors. The first is the relevance of the


evidence. Darden, 145 Wn.2d at 621 ( citing State v. Hudlow, 99 Wn.2d 1, 15, 659 P. 2d 514

 1983)).        The second is' the balance between the defendant' s need for relevant and probative


information and the State' s compelling interest in excluding evidence so prejudicial that it

disrupts the " fact- finding       process at   trial."   Darden, 145 Wn.2d at 622 ( citing Hudlow, 99 Wn.2d

at 15).


               We hold that the trial court did not err by limiting Phillips' s ability to cross- examine

Brandon. Phillips' s counsel made clear that he wanted to inquire, not about the conviction itself,.

but about the facts underlying the conviction. Counsel further made clear that he wanted to ask

about those underlying facts, not for impeachment purposes, but in order to show the jury

Brandon' s alleged propensity to shoot at other people. In short, counsel wanted the court' s leave

to ask the jurors to make the impermissible inference that Phillips was not guilty beyond a

reasonable doubt because Brandon was the type of person who committed assault with a firearm.


               Washington has expressed its compelling interest in preventing jurors from making that "

sort of inference in the form of ER 404( b).


               ER 404( b) reflects the long-standing policy of Anglo-American law to exclude
               most character evidence because " it is said to weigh too much with the jury and to
               so overpersuade them....     The overriding policy of excluding such evidence,
               despite its admitted probative value, is the practical experience that its disallowance
               tends to   prevent confusion of   issues ...   and undue prejudice."




State     v.   Slocum, 183 Wn.     App.   438, 456, 333 P. 3d 541 ( 2014) ( alteration in   original) ( quoting



Michelson         v.   United States, 335 U. S. 469, 476, 69 S. Ct. 213, 93 L. Ed. 168 ( 1948)).      Assuming

that Phillips wanted to adduce relevant evidence, the State had a compelling interest, given form




                                                              17
No. 45411 -4 -II



in ER 404( b),   in keeping propensity evidence from the jury. The trial court recognized this and

properly excluded the evidence.

         Further, confrontation clause violations are subject to harmless error analysis. Delaware


v.   Van Arsdall, 475 U. S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 ( 1986).   We may affirm any

conviction tainted by a confrontation clause violation where the error appears harmless beyond a

reasonable    doubt.   Van Arsdall, 475 U.S. at 684. Among the factors relevant to the harmless

error analysis in this context are the importance of the witness' s testimony in the prosecution' s

case, whether the witness provided only cumulative testimony, whether other evidence

corroborated the witness on material points, the extent of cross- examination permitted, and the


strength of   the State'   s case.   Van Arsdall, 475 U. S. at 684.


          Even if we assumed that the trial court erred, the error was harmless. Phillips was the


one last seen by Contraro with the gun used to shoot her; he had held the gun to her head, heart,

and stomach just before it fired a bullet into her leg. Contraro testified that she believed that

Phillips had shot her, and Phillips himself told two different cell mates that he had done so.


Further, the jury heard that Phillips had attempted to contract for Contraro' s murder at the hands

of two different cell mates, and one of them testified that Phillips specified that he wanted her


dead to eliminate his legal difficulties. In the face of this overwhelming untainted evidence of

Phillips' s guilt of assault, any alleged error in restricting Phillips' s cross- examination of Brandon

was harmless.


                                                 CONCLUSION


          We affirin Phillips' s convictions for domestic violence first degree assault, domestic


violence fourth degree assault, unlawful possession of a firearm, and domestic violence criminal




                                                        M
No. 45411 -4 -II



solicitation to commit first degree murder.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.




 We concur:
                                                 fi    RUF.., --- -- - -•




 I' CHANSON, C. J.




 SUTTON, J.




                                                19
