               IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                   DIVISION ONE

STATE OF WASHINGTON,                                                                      )   No. 78653-9-I

                                                       Respondent,                        )   UNPUBLISHED OPINION
                           v.                                                             )
                                                                                          )
DEWAYLON LACY,                                                                            )
                                                       Appellant.                         )   FILED: February 24, 2020
_______________________________________________________________________________________   )

                ANDRUS, J            —   DeWaylon Lacy appeals his conviction for bail jumping, arguing

  that the trial court erred in denying his pretrial motion to sever the bail jumping

  charge from his underlying domestic violence charges. We conclude that the

  charges were properly joined and that Lacy was not prejudiced by this joinder or

  by the trial court’s refusal to later sever to the charges. We thus affirm Lacy’s

  conviction.

                                                                            FACTS

                DeWaylon and Chandra Lacy, married with two young children, got into an

  argument on the morning of May 30, 2017. Chandra1 testified that she told Lacy

  that morning that she wanted a divorce. She stated that Lacy yelled at her for

  hours, would not let her leave the home, and pushed her and grabbed her arm



   For purposes of this opinion, we refer to Chandra Lacy by her first name to avoid confusion. We
  mean no disrespect.
No. 78653-9-1/2

every time she tried to leave. Lacy testified that when Chandra asked for a divorce,

he became emotional and pleaded for her to stay, but he denied pushing her or

preventing her from leaving the room or the home.

       During these events, Chandra received a call from their daughter’s school

to inform her that the child had been injured at school and needed to be picked up.

When Chandra and Lacy arrived at the school, Chandra asked school staff to call

911 because she was experiencing a domestic violence situation.              School

employee Debbie Stratton testified that she called 911 after seeing Chandra and

hearing her pleas for help.

       The State charged Lacy with one count of unlawful imprisonment, domestic

violence, and one count of fourth degree assault, domestic violence. Lacy failed

to appear for his March 2, 2018 trial call.

       On May 31, 2018, the State moved to amend the charges to add a charge

of bail jumping. But in anticipation of this motion, on May 8, 2018, Lacy moved to

sever the bail jumping charge from the existing charges of unlawful imprisonment

and fourth degree assault.

       The trial court denied the severance motion and granted the State’s motion

to amend.    It reasoned that the factual basis for the bail jumping charge only

existed because of the initial information charging Lacy with unlawful imprisonment

and fourth degree assault.     It further noted that Lacy would not be prejudiced

because the jury would be instructed to consider each count separately. Lacy

renewed his motion to sever at the close of the State’s case, and the trial court




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denied the motion again, reasoning that the instructions were clear that the jury

was to consider each count independently.

       On June 6, 2018, the jury found Lacy not guilty of unlawful imprisonment,

and fourth degree assault, It found him guilty of bail jumping. Lacy appeals.

                                      ANALYSIS

       Lacy contends that the trial court erred in joining the bail jumping charge

with the underlying domestic violence charges under CrR 4.3(a) and in failing to

sever the charges under CrR 4.4(b). We disagree.

       CrR 4.3(a)(2) provides:

       Two or more offenses may be joined in one charging document, with
       each offense stated in a separate count, when the offenses, whether
       felonies or misdemeanors or both        . [a]re based on the same
                                                   .   .


       conduct or on a series of acts connected together or constituting
       parts of a single scheme or plan.

This court reviews a trial court’s decision on a pretrial motion for joinder for abuse

of discretion. Statev. Bluford, 188 Wn.2d 298, 305, 393 P.3d 1219(2017). Where

joinder is proper, the offenses “shall be consolidated for trial.” ki. at 306.

       But 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.” CrR 4.4(b). Even if the charges

are properly joined, a trial court may sever the charges “if doing so will promote a

fair determination of the defendant’s guilt or innocence of each offense,

considering any resulting prejudice to the defendant.” State v. Bryant, 89 Wn. App.

857, 864, 950 P.2d 1004 (1998). We review a trial court’s refusal to sever for

manifest abuse of discretion. ki.


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       We conclude that the trial court did not abuse its discretion in joining the bail

jumping and the domestic violence charges under Bryant.              In that case, the

defendant Bryant was charged with second degree robbery and posted bond but

failed to appear at an omnibus hearing. Bryant, 89 Wn. App. at 863.              Bryant

claimed he had missed the hearing because he had become confused about his

court dates. j~ When the State subsequently sought to amend the information to

add a bail jumping charge, the trial court granted the request and joined the two

offenses for trial over Bryant’s objection. j4. The jury found Bryant guilty of bail

jumping, and found him not guilty of second degree robbery, instead finding him

guilty of the lesser included crime of theft in the third degree. j.ç~ Bryant appealed

his conviction for bail jumping. jç~

       On appeal, this court adopted the joinder test set out in United States v.

Ritch, 583 F.2d 1179 (1st Cir. 1978):

       It is well established that a charge of bail jumping or escape may be
       deemed sufficiently “connected” with a substantive offense to permit
       a single trial, at least where the charges are related in time, the
       motive for flight was avoidance of prosecution, and appellant’s
       custody stemmed directly from the substantive charges.

Id. at 866 (quoting Ritch, 583 F.2d at 1180-81). This court, however, determined

that not all of the prongs had to be met in Washington “given Washington’s strong

policy in favor of conserving judicial and prosecution resources.” ki. at 867. It

concluded that the trial court had not erred in joining the bail jumping charge with

Bryant’s robbery charge because the acts were related in time, having occurred

within four months of one another and the missed court appearance was a hearing

stemming from the robbery charge. j4. It further noted that when a defendant


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No. 78653-9-1/5

“fail[sJ to appear when required at a hearing related to the underlying charge, the

acts giving rise to the two charges are likely to be related in time.” ~

        The present case is analogous. Lacy was initially charged with unlawful

imprisonment on August 29, 20172 and failed to appear for his trial call on March

2, 2018. The State amended the charges to include bail jumping on May 31, 2018.

Under Bryant, these three charges were sufficiently related in time, and Lacy’s

failure to appear stemmed directly from the unlawful imprisonment and assault

charges. We conclude that the charged offenses were sufficiently connected to

make joinder appropriate.

       Alternatively, Lacy asserts that the trial court abused its discretion in

denying his motion to sever the charges before and during trial. Our courts look

to four factors to determine whether severance is necessary to avoid undue

prejudice: “(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.” Bluford, 188 Wn.2d at 311-12 (quoting State v. Russell, 125 Wn.2d

24, 63, 882 P.2d 747 (1994)). A defendant seeking severance has the burden of

demonstrating that a trial involving both counts would be so manifestly prejudicial

as to outweigh the concern for judicial economy. State v. Bythrow, 114 Wn.2d

713, 718, 790 P.2d 154 (1990).

       First, as to the strength of the State’s evidence for each charge, the State

presented testimony from Chandra, the only witness to the events leading to the


2 The State added the fourth degree assault charge in an amended complaint dated February 23,

2018.

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No. 78653-9-1/6

underlying charges of unlawful imprisonment and assault.          It also presented

testimony from the school official who called 911 and who saw Chandra in distress,

and from the law enforcement officials who interviewed Chandra at the school and

Lacy at their home. The State also presented court records and witness testimony

to support the bail jumping charge. Lacy admitted below that he missed his March

2 hearing date. The trial court did not abuse its discretion in determining that the

evidence of all three charges was equal in strength.

       Second, Lacy’s defense to each of the three charges was a general denial.

“The likelihood that joinder will cause a jury to be confused as to the accused’s

defenses is very small where the defense is identical on each charge.” Russell,

125 Wn.2d at 64. There was no conflict in Lacy’s defenses here.

      Third, the court properly instructed the jury to consider each count

separately. Jury Instruction 4 stated: “A separate crime is charged in each count.

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

control your verdict on any other count.” Jurors are presumed to follow their

instructions. Statev. Emery, 174 Wn.2d 741, 754, 278 P.3d 653 (2012).

      Finally, the trial court correctly noted that the evidence of Lacy’s failure to

appear for the March 2 hearing would not be cross admissible if the charges were

tried separately. Under the bail jumping pattern jury instruction, the State must

prove that the defendant had been charged or convicted of a crime. See 1 1A

WASHINGTON PRAcTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

120.41, at 570 (4th ed. 2016) (WPIC). The jury here was instructed that the State

had to prove that Lacy had been charged with unlawful imprisonment.              But



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No. 78653-9-117

evidence of the details of the domestic violence charges—such as the fight

between Lacy and Chandra and the circumstances leading the school official to

call 911—would not have been admissible in a separate bail jumping trial. Nor

would evidence of the bail jumping be admissible in the domestic violence assault

trial. But our Supreme Court has held that severance is not required in every case

in which evidence of one count would be inadmissible in a separate trial of the

other counts. Bythrow, 114 Wn.2d at 720. The fact that separate counts may not

be cross-admissible does not necessarily represent a sufficient ground as a matter

of law.       at 720. When a trial lasts only a few days and the issues are relatively

simple, a jury can be reasonably expected to compartmentalize the evidence. jçj~

at 721.

          Lacy has not demonstrated prejudice from the trial court’s failure to sever

the charges. The trial lasted only three days, and the issues were relatively simple.

And the jury acquitted Lacy of the underlying crimes, despite being exposed to the

bail jumping evidence. In Bryant, the jury found Bryant guilty of the lesser offense,

despite the evidence of bail jumping. 89 Wn. App. at 868. The Bryant court

reasoned that “[ijf anything, the jury’s verdict demonstrates a lack of prejudice.”   i~L
Here, the discrepancy is even greater—Lacy was acquitted of all the underlying

charges and only found guilty of bail jumping. And Lacy admitted he missed the

March 2 pretrial hearing. As in Bryant, this jury verdict is strong evidence that Lacy

was not prejudiced by the trial court’s refusal to sever the bail jumping charge from

the underlying charges.




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No. 78653-9-I/S

       Finally, Lacy maintains that the trial court improperly excluded evidence that

he had appeared for his other court hearings as a defense to his bail jumping

charge. He argues that this evidence was relevant because it demonstrated his

compliance with the court ordered appearances when he knew about them. We

review a trial court’s evaluation of relevance for manifest abuse of discretion.

Russell, 125 Wn.2d at 78. “Discretion is abused only when no reasonable person

would have decided the issue as the trial court did.” k~.

       Under RCW 9A.76.170(1), a person is guilty of bail jumping if he has been

released by court order with knowledge that he must appear at subsequent court

hearings and he fails to appear at any such hearing. There is a statutory defense

to the charge: (1) “uncontrollable circumstances prevented the person from

appearing;” (2) the person “did not contribute to the creation of such circumstances

in reckless disregard of the requirement to appear;” and (3) the person appeared

as soon as these circumstances ceased to exist. RCW 9A.76.170(2).

       Lacy admitted below that he signed a document informing him that he was

required to appear for a hearing on March 2, 2018 at 1:00 PM and that he failed to

appear on that date.    Lacy did not contend that uncontrollable circumstances

prevented him from making it to court that day. Instead, he testified that he had “a

lot of things going on,” including homelessness and unemployment, as his reasons

for missing the court date. Forgetting about a hearing is not a defense to bail

jumping. State v. Carver, 122 Wn. App. 300, 302, 93 P.3d 947 (2004).

      The fact that Lacy attended several court hearings was not relevant to any

element of the charged crime or to his defense to that charge. The Legislature


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No. 78653-9-1/9

amended the bail jumping statute in 2001 to alter the mens rea requirement from

knowingly failing to appear on a specific date to failing to appear after being

released with knowledge of the requirement of a subsequent personal appearance

before that court. hA WPIC 120.41, Comment. “This change eliminates the need

to establish that the defendant remembered the date of the hearing at the time he

or she failed to appear.” hA WPIC 120.41, Comment. The fact that Lacy showed

up for other court hearings was not probative of Lacy’s mens rea. The trial court

did not abuse its discretion in excluding this evidence.3

        Affirmed.




WE CONCUR:




~ Lacy has also submitted a pro se Statement of Additional Grounds for Review under RAP 10.10,
in which he asserts a claim of discrimination. Because this argument is not supported by credible
evidence in the record, we cannot review it. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345
(2008); RAP 10.10(c). This issue, however, may be properly raised through a personal restraint
petition. j.a~.

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