                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           January 12, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46297-4-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

 RANDY RICHTER,

                                Appellant.

       MAXA, J. — Randy Richter challenges his convictions and sentence for three counts of

delivery of a controlled substance, all within 1,000 feet of a school bus stop, and one count of

possession with intent to deliver a controlled substance.

       We hold that (1) the trial court did not err in denying Richter’s motion for a mistrial after

a police officer witness referred to Richter’s statement to the officer, which the trial court had not

admitted after a CrR 3.5 hearing; (2) the trial court’s reasonable doubt jury instruction, which

includes the phrase “a reasonable doubt is one for which a reason exists,” was not

constitutionally deficient; (3) the trial court did not abuse its discretion by imposing Richter’s

exceptional sentence above the standard range even though his convictions were based on three

nearly identical controlled buys; and (4) Richter’s claims of error in his statement of additional
No. 46297-4-II


grounds (SAG) have no merit.1 However, we hold that the trial court erred in sentencing Richter

by imposing Richter’s three school zone enhancements consecutively with each other and by

imposing discretionary legal financial obligations (LFOs) without assessing Richter’s current and

future ability to pay.

        Accordingly, we affirm Richter’s convictions, but remand for resentencing.

                                               FACTS

        A confidential informant (CI) told the Longview Police Department that Richter would

sell her methamphetamine. Detective Rocky Epperson, who was with the Cowlitz/Wahkiakum

Narcotics Task Force, set up a series of controlled buys. On June 21, July 5, and July 11, 2013,

Richter sold the CI 0.9 grams, 0.6 grams, and 0.3 grams of methamphetamine, respectively.

Each controlled buy basically followed the same procedure.

        On August 28, 2013, Epperson stopped Richter’s vehicle and arrested him. Richter’s

vehicle was taken back to the Longview Police Department’s secured parking lot. Epperson

obtained a search warrant for the vehicle, which he executed on August 29. He found a

backpack in Richter’s vehicle, which included a digital scale with crystal residue, baggies, a

lockbox, and a bag of methamphetamine.

        The State charged Richter with three counts of delivery of a controlled substance within

1,000 feet of a school bus stop and one count of possession of a controlled substance with intent

to deliver.




1
  Richter also argues that defense counsel was ineffective for failing to object to the trial court’s
imposition of legal financial obligations. Because we hold that the trial court erred in imposing
legal financial obligations, we do not address this argument.


                                                  2
No. 46297-4-II


       Before trial began, the parties briefly discussed the need for a hearing under CrR 3.5.

The prosecutor indicated he did not plan to introduce any of Richter’s statements made to the

police. Therefore, the trial court did not conduct a CrR 3.5 hearing.

       At trial, defense counsel questioned Epperson about his search of Richter’s vehicle.

Epperson said that he found a backpack sitting on the passenger seat near some automotive items

“[t]hat Mr. Richter later told me were his.” Report of Proceedings (RP) (Apr. 24, 2014) at 158.

Defense counsel objected and asked that Epperson’s testimony about Richter’s statement be

stricken. The trial court sustained the objection and instructed the jury to disregard Epperson’s

testimony. Later that day, Richter moved for a mistrial because Epperson testified about an

admission by Richter that had not been admitted by a CrR 3.5 hearing. The trial court denied the

motion for a mistrial.

       The trial continued and the case was submitted to the jury. The trial court gave the

standard reasonable doubt jury instruction, which includes the statement that “[a] reasonable

doubt is one for which a reason exists.” Clerk’s Papers (CP) at 21. This instruction was

identical to WPIC 4.01. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTION:

CRIMINAL 4.01, at 85 (3d ed. 2008) (WPIC).

       The jury found Richter guilty of all four charges. In addition, for each of Richter’s three

counts of delivery of a controlled substance, the jury returned a special verdict finding that

Richter had delivered a controlled substance within 1,000 feet of a school bus route stop.

       The trial court calculated Richter’s offender score at 28, which provided Richter with a

standard sentencing range of 60 to 120 months for each of the convictions. Richter asked the

trial court to impose a midrange sentence based on the fact that the police were in control of the



                                                 3
No. 46297-4-II


number of his controlled buys. The trial court responded that although officers determined the

number of controlled buys, nobody was forcing Richter to sell drugs and he could have made the

decision to stop. The trial court found that an exceptional sentence was appropriate because

Richter’s high offender score resulted in some current offenses going unpunished under RCW

9.94A.535(2)(c).

       The trial court sentenced Richter to 160 months for each of Richter’s four convictions, to

be served concurrently. The trial court also sentenced Richter to 24 months for each of the three

school zone enhancements, and imposed them consecutively with the other sentences and with

each other.

       The trial court imposed $5,045 in LFOs without addressing Richter’s future or current

ability to pay. Richter did not object to the trial court’s imposition of LFOs.

       Richter appeals his convictions and sentence.

                                            ANALYSIS

A.     DENIAL OF RICHTER’S MOTION FOR A MISTRIAL

       Richter challenges the trial court’s denial of his motion for a mistrial based on Epperson’s

testimony about Richter’s statement to him regarding ownership of automotive items found next

to a backpack containing methamphetamine. Richter argues that a mistrial was necessary

because Richter’s statement was admitted without the trial court holding a constitutionally

required CrR 3.5 hearing. We disagree.

       1.     Violation of CrR 3.5

       CrR 3.5(a) provides that “[w]hen a statement of the accused is to be offered in evidence,”

the trial court shall hold a hearing to determine whether the statement is admissible. The purpose



                                                 4
No. 46297-4-II


of a CrR 3.5 hearing is to provide a mechanism by which a defendant can have the voluntariness

of an incriminating statement determined in a preliminary hearing, outside the presence of the

jury. State v. Williams, 137 Wn.2d 746, 750, 975 P.2d 963 (1999). CrR 3.5 is a mandatory rule

– the trial court must hold a CrR 3.5 hearing before admitting a defendant’s statement. State v.

Kidd, 36 Wn. App. 503, 509, 674 P.2d 674 (1983).2

       The trial court would have violated CrR 3.5 if it had allowed Epperson’s testimony about

Richter’s statement into evidence. However, the trial court did not allow the testimony into

evidence – it sustained Richter’s objection to the testimony and instructed the jury to disregard

the testimony. CrR 3.5 expressly applies only when the defendant’s statement is “to be offered

in evidence.” Therefore, we hold that the trial court did not violate CrR 3.5.

       2.   Mistrial Analysis

       Determining that the trial court did not violate CrR 3.5 does not end our analysis. Richter

appears to argue that the trial court should have ordered a mistrial because the jury heard

Epperson’s testimony about Richter’s statement before it was stricken, which caused incurable

prejudice. We disagree.

       We review a trial court’s denial of a mistrial for abuse of discretion. State v. Emery, 174

Wn.2d 741, 765, 278 P.3d 653 (2012). In evaluating a mistrial motion, we consider (1) the

seriousness of the irregularity, (2) whether the irregularity involved cumulative evidence, and

(3) whether the trial court instructed the jury to disregard the evidence. Id. These factors are



2
 The State argues that CrR 3.5 is inapplicable here because Richter’s statement was not a
“confession.” However, CrR 3.5 expressly applies to any “statement” of the defendant, and is
not limited to “confessions.” And Richter’s statement arguably was incriminating.



                                                 5
No. 46297-4-II


considered with deference to the trial court because the trial court is in the best position to

discern prejudice. State v. Garcia, 177 Wn. App. 769, 776-77, 313 P.3d 422 (2013), review

denied, 179 Wn.2d 1026 (2014). A trial court should only grant a mistrial if there is such

prejudice that nothing short of a mistrial will ensure the defendant a fair trial. Emery, 174 Wn.2d

at 765. And an abuse of discretion will be found for denial of a mistrial only when no reasonable

judge would have reached the same conclusion. Id.

       At trial, defense counsel elicited the following testimony:

       Q: What about that backpack, did you find any kind of mail or any kind of things
          that would indicate it was Randy’s stuff?
       A: No, it was sitting on the passenger seat right near some automotive-type
          things.
       Q. Okay.
       A: That Mr. Richter later told me were his.

RP (Apr. 24, 2014) at 158 (emphasis added). As noted above, the trial court immediately

sustained an objection to the testimony and instructed the jury to disregard it.

       Analysis of the mistrial factors shows that the trial court did not abuse its discretion in

denying the motion for mistrial based on this testimony. First, the irregularity was not

particularly serious. Epperson’s testimony was inadmissible because no CrR 3.5 hearing had

been held, and therefore it was improper for him to reference Richter’s statement. However,

Richter only admitted to owning things next to the backpack, not the backpack itself. Although

the jury could have inferred from Richter’s statement that he also owned the backpack, the

irregularity was not as serious as if Richter actually had admitted to owning the backpack.

       Second, Epperson’s testimony about Richter’s statement was somewhat cumulative. No

other evidence was admitted at trial regarding Richter’s statements that the automotive items or

the backpack itself were his. However, Richter was arrested with the backpack next to him in


                                                  6
No. 46297-4-II


the passenger seat of the vehicle that he had driven during all the controlled buys. And the

backpack contained packing materials and methamphetamine similar to what the CI and law

enforcement officer received from Richter when making controlled buys. Therefore, there was

other circumstantial evidence that Richter was in possession of the backpack.

       Third, the trial court instructed the jury that it was sustaining Richter’s objection and that

the jury should disregard Epperson’s testimony. Richter’s prompt objection to Epperson’s

statement and the trial court’s verbal instruction to the jury cured any irregularity. And we

presume that the jury followed the trial court’s instruction and considered only the evidence that

was properly before it. State v. Perez-Valdez, 172 Wn.2d 808, 818-19, 265 P.3d 853 (2011).

       We hold that the trial court did not abuse its discretion in concluding that Epperson’s

testimony about Richter’s statement did not warrant a mistrial. Therefore, we hold that the trial

court did not err when it denied Richter’s mistrial motion.

B.     PROPRIETY OF WPIC 4.01

       Richter argues that the jury instruction defining reasonable doubt as “one for which a

reason exists” was constitutionally deficient because (1) it required the jury to articulate a reason

for having a reasonable doubt and (2) impermissibly shifts the burden of proof to the defendant.

Suppl. Br. of Appellant at 2. We disagree.

       The trial court’s reasonable doubt jury instruction was identical to WPIC 4.01. In State v.

Bennett, the Supreme Court directed trial courts to use only WPIC 4.01 to instruct juries on the

burden to prove every element of the charged crime beyond a reasonable doubt. 161 Wn.2d 303,

318, 165 P.3d 1241 (2007). In State v. Kalebaugh, the Supreme Court recently reaffirmed that

WPIC 4.01 was the “proper” instruction and “the correct legal instruction on reasonable doubt.”



                                                  7
No. 46297-4-II


183 Wn.2d 578, 585-86, 355 P.3d 253 (2015). The court distinguished between the proper

language of WPIC 4.01 (“a doubt for which a reason exists”) and the trial court’s improper

additional instruction in that case (“a doubt for which a reason can be given”). Id. at 584

(emphasis added). Similarly, the Supreme Court in Emery stated that the prosecutor in closing

argument “properly” described reasonable doubt as a doubt for which a reason exists. 174

Wn.2d at 760.

       Bennett and Kalebaugh control here. We are constrained by these cases to hold that the

trial court did not err in giving the reasonable doubt instruction based on WPIC 4.01.3

C.     EXCEPTIONAL SENTENCES

       Richter argues that the trial court’s 160 month exceptional sentence was clearly excessive

because his three convictions for possession of a controlled substance all arose from controlled

buys that involved the same buyer and small amounts of drugs over a short period of time. We

disagree.

       1.    Standard of Review

       To reverse a sentence that is outside the standard sentence range, a reviewing court must

find either that (1) the record does not support the trial court’s reasons for the sentence, (2) those

reasons do not support an exceptional sentence, or (3) the sentence imposed was clearly

excessive or clearly too lenient. RCW 9.94A.585(4); State v. France, 176 Wn. App. 463, 469,




3
  Richter’s argues that the trial court’s reasonable doubt instruction resembles the improper “fill
in the blank” arguments that constitute prosecutorial misconduct under Emery, 174 Wn.2d at
760, and other cases. The Supreme Court did not address this argument in Kalebaugh or Emery,
but we are bound by the approval of the WPIC 4.01 reasonable doubt language in those cases.


                                                  8
No. 46297-4-II


308 P.3d 812 (2013), review denied, 179 Wn.2d 1015 (2014). Richter argues only that the trial

court’s exceptional sentence was clearly excessive.

       We review a claim that an exceptional sentence is clearly excessive under an abuse of

discretion standard. France, 176 Wn. App. at 469.

       2.      Exceptional Sentence for Unpunished Offenses

       A defendant’s standard sentencing range is based on his or her offender score. See RCW

9.94A.510. Under RCW 9.94A.525, the trial court calculates a defendant’s offender score based

on prior convictions. RCW 9.94A.589(1)(a) provides that when a defendant is sentenced for

multiple current offenses, the offender score for each current offense is determined by treating

the other current convictions as if they were prior convictions.

       However, a defendant’s standard range sentence reaches its maximum limit at an

offender score of 9. RCW 9.94A.510; State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345

(2008). This means that when a defendant’s offender score already is 9 without consideration of

the other current offenses, those current offenses do not affect the defendant’s sentencing range

for the first offense. Id. at 563. In other words, in this situation the defendant would not be

punished for the other current offenses if sentenced within the standard range for the first

offense. Id.

       RCW 9.94A.535(2)(c) allows the trial court to remedy this situation. That statute

provides that a trial court may impose an aggravated exceptional sentence without a finding of

fact by the jury when “[t]he defendant has committed multiple current offenses and the

defendant’s high offender score results in some of the current offenses going unpunished.”

RCW 9.94A.535(2)(c). Once the trial court determines that some of the defendant’s offenses



                                                 9
No. 46297-4-II


will go unpunished, it has discretion to impose an exceptional sentence on all current offenses.

France, 176 Wn. App. at 468-69. This is known as the “free crimes aggravator.” Id. at 468.

         Here, the trial court calculated Richter’s offender score as 28. This meant that if Richter

was sentenced within the standard range for one of his convictions, he would not receive any

punishment for the other three convictions. See Alvarado, 164 Wn.2d at 563. As a result, the

trial court imposed an exceptional sentence on all the current offenses based on the free crimes

aggravator.

         3.   Multiple Controlled Drug Buys

         Richter argues that the trial court’s exceptional sentences were clearly excessive because

there was no meaningful difference between the first controlled buy and the other two. He relies

on two cases, State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993), and State v. Hortman, 76

Wn. App. 454, 886 P.2d 234 (1994), that involved exceptional sentences below the standard

range.

         In Sanchez, police initiated three controlled buys involving the same buyer at the same

residence within nine days. 69 Wn. App. at 256-57. The defendant’s sentence range (67 to 89

months) was based on the three current offenses; the defendant had no prior criminal history. Id.

at 257. At sentencing, the trial court imposed an exceptional sentence below the standard range

for each of the three counts. Id. at 257.

         This court held that a below-range sentence is justified when the difference between the

effects of the first buy and the cumulative effects of all three buys is “nonexistent, trivial or

trifling.” Id. at 261. The court held that the trial court did not abuse its discretion in imposing an

exceptional sentence below the standard range because the second and third controlled buys



                                                  10
No. 46297-4-II


added little or nothing to the first one. Id. at 261. The court stated that the last two controlled

buys had no apparent purpose other than to increase the presumptive sentence. Id. at 261. But

the court was careful to note that its holding did not apply to police-initiated controlled buys that

involved different sellers or purchasers, large quantities of drugs, or with a law enforcement

purpose other than to generate an increase in the offender’s standard range. Id. at 262-63.

       In Hortman, Division One of this court adopted the reasoning articulated in Sanchez.

Hortman, 76 Wn. App. at 463-64. That case also involved two controlled buys in an identical

location with the same buyer over approximately a month. Id. at 456. The court affirmed the

trial court’s imposition of an exceptional sentence below the standard range based on the trial

court’s finding that the difference between the first buy and the second buy was so minimal as to

be trivial. Id. at 458, 462-64.4

       Sanchez and Hortman are distinguishable for three reasons. First, they both involved

exceptional sentences below the standard range. Hortman, 76 Wn. App. at 458; Sanchez, 69 Wn.

App. at 257. Here, the trial court imposed an exceptional sentence above the standard range.

Second, both cases involved whether the multiple offense policy of former RCW 9.94A.400,

recodified as RCW 9.94A.589 (2001) would result in a standard range sentence that was clearly

excessive when the defendants had low offender scores without the current offenses.5 Hortman,

76 Wn. App. at 457-58; Sanchez, 69 Wn. App. at 260. Here, the multiple offense policy was


4
 The analysis in Sanchez primarily has been applied only in the context of a trial court
exercising its discretion to adjust a defendant’s sentence downward. See, e.g., State v. Bridges,
104 Wn. App. 98, 100-04, 15 P.3d 1047 (2001); State v. Fitch, 78 Wn. App. 546, 549-54, 897
P.2d 424 (1995).
5
 The defendant’s offender score without the current offenses was 0 in Sanchez and 7 in
Hortman. Sanchez, 69 Wn. App. at 257; Hortman, 76 Wn. App. at 457.


                                                  11
No. 46297-4-II


irrelevant because Richter’s high offender score meant that the current offenses could not

increase the standard sentencing range. Third, neither case involved a “free crimes” situation. In

both Sanchez and Hortman, the defendants were punished for all current crimes, but below the

standard range. Sanchez, 69 Wn. App. at 257; Hortman, 76 Wn. App. at 457. Here, imposition

of a standard range sentence would not have punished Richter at all for his current offenses.

       Given these differences, Sanchez and Hortman are not controlling. On the other hand,

the principle that multiple controlled buys should not dictate the sentence when the subsequent

controlled buys add little or nothing to the first one may have some relevance in considering the

free crimes aggravator. A trial court could decide not to impose an exceptional sentence based

on the holding in Sanchez. However, Richter cites no authority for the proposition that a trial

court automatically abuses its discretion by imposing an exceptional sentence based on the free

crimes aggravator when the current offenses are based on similar controlled buys.6

       Further, Richter ignores the fourth conviction, for possession with intent to deliver. That

conviction was not part of a series of controlled buys, and the Sanchez rule has no application.

Given Richter’s high offender score, this fourth conviction would not have been punished if the

trial court had imposed a standard range sentence. And as stated above, if some of the

defendant’s offenses will go unpunished, the trial court has discretion to impose an exceptional

sentence on all current offenses. France, 176 Wn. App. at 468-69.




6
  In the one case addressing Sanchez that involved an above-range exceptional sentence based on
an ongoing investigation, this court distinguished Sanchez. State v. McCollum, 88 Wn. App.
977, 985-86, 947 P.2d 1235 (1997). The court stated that the difference between the offenses
was not trivial, and “[i]n fact, the offenses together draw a picture of an active drug dealer.” Id.
at 986-87.


                                                12
No. 46297-4-II


       Here, the trial court had statutory authority to impose an exceptional sentence above the

standard range because Richter’s offender score of 28, even without the current offenses, meant

that a standard range sentence would not punish him for the current offenses. RCW

9.94A.535(2)(c). Even if there was no difference between the three deliveries of a controlled

substance offenses, the possession with intent to deliver offense was different and would be

unpunished by a standard range sentence. And Richter’s offender score even without the current

offenses was 28. Richter does not explain why his exceptional sentence was clearly excessive

under these circumstances.

       As stated above, the standard of review is abuse of discretion. France, 176 Wn. App. at

469. We hold that the trial court did not abuse its discretion by imposing a 160 month

exceptional sentence above the standard range for Richter’s offenses.

D.     CONSECUTIVE SCHOOL ZONE ENHANCEMENTS

       Richter argues the trial court exceeded its statutory sentencing authority by imposing

three school zone sentencing enhancements under RCW 9.94A.533(6) consecutively with each

other, rather than concurrently. Under the Supreme Court’s recent decision in State v. Conover,

183 Wn.2d 706, 355 P.3d 1093 (2015), we hold that the trial court erred.

       RCW 9.94A.533(6) provides as follows:

                An additional twenty-four months shall be added to the standard sentence
       range for any ranked offense involving a violation of chapter 69.50 RCW if the
       offense was also a violation of RCW 69.50.435 or 9.94A.827. All enhancements
       under this subsection shall run consecutively to all other sentencing provisions,
       for all offenses sentenced under this chapter.

The first sentence of RCW 9.94A.533(6) is not at issue. There is no question that Richter

committed ranked offenses under chapter 69.50 RCW in violation of RCW 69.50.435, which



                                               13
No. 46297-4-II


requires enhanced penalties for drug offenses committed within 1,000 feet of a school bus stop or

school grounds. RCW 69.50.401(1), .435(1)(c), (d). At issue here is the meaning of the second

sentence in RCW 9.94A.533(6): “All enhancements under this subsection shall run consecutively

to all other sentencing provisions, for all offenses sentenced under this chapter.”

       The Supreme Court recently resolved this issue in Conover by comparing the language of

RCW 9.94A.533(6) with the contrasting language in the statutory provisions addressing other

sentence enhancements: RCW 9.94A.533(3)(e) (firearm enhancements shall run consecutively

to all other sentencing provisions, including other firearm or deadly weapon enhancements) and

RCW 9.94A.533(4)(e) (deadly weapon enhancements shall run consecutively to all other

sentencing provisions, including other deadly weapon or firearm enhancements)). 183 Wn.2d at

712-13. The court concluded that the legislature’s choice of different language indicates a

different legislative intent and does not require multiple school zone enhancements to be

imposed consecutively to each other. Id. at 712-13. Therefore, the court held that “RCW

9.94A.533(6) requires the trial court to run Conover’s bus stop enhancements consecutively to

the base sentences for each [convicted offense], but not consecutively to each other.” Id. at 719.

       Conover controls. Therefore, we remand for resentencing.

E.     IMPOSITION OF LFOS

       Richter argues that the trial court erred in imposing LFOs without determining whether

he had a current or future ability to pay them. We agree.7


7
  Richter did not object to the imposition of LFOs at sentencing. Under RAP 2.5(a), we
ordinarily do not consider LFO challenges raised for the first time on appeal. See State v. Lyle,
188 Wn. App. 848, 852, 355 P.3d 327 (2015). However, as discussed above, we are remanding
for resentencing. Because this case will be remanded, we will consider the LFO issue.



                                                 14
No. 46297-4-II


          RCW 10.01.160(3) provides that the trial court (1) “shall not order a defendant to pay

costs unless the defendant is or will be able to pay them,” and (2) shall take account of the

defendant’s financial resources and the nature of the burden that payment of costs will impose in

determining the amount and method of payment of costs. “The trial court must decide to impose

LFOs and must consider the defendant’s current or future ability to pay those LFOs based on the

particular facts of the defendant’s case.” State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d 680

(2015).

          The Supreme Court in Blazina made it clear that the trial court must expressly assess, on

the record, a defendant’s ability to pay LFOs.

          Practically speaking, this imperative under RCW 10.01.160(3) means that the court
          must do more than sign a judgment and sentence with boilerplate language stating
          that it engaged in the required inquiry. The record must reflect that the trial court
          made an individualized inquiry into the defendant’s current and future ability to
          pay. Within this inquiry, the court must also consider important factors . . . such as
          incarceration and a defendant’s other debts, including restitution, when determining
          a defendant’s ability to pay.

Id. at 838.

          Here, the record shows that the trial court failed to assess Richter’s current or future

ability to pay and simply included boilerplate language to that effect. Under Blazina, inclusion

of boilerplate language in the judgment and sentence that the trial court made such an assessment

is not sufficient. 182 Wn.2d at 838. Accordingly, we hold that the trial court erred in imposing

discretionary LFOs. We instruct the trial court on remand to consider Richter’s current or future

likely ability to pay discretionary LFOS before imposing them.




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No. 46297-4-II


G.     SAG ASSERTIONS

       Richter asserts a number of arguments in his SAG. A SAG must adequately inform this

court of the nature and occurrence of alleged errors. State v. Gauthier, 189 Wn. App. 30, 43-44,

354 P.3d 900 (2015). Issues involving facts outside of the record are properly raised in a

personal restraint petition, rather than a SAG. Id. at 43. And we are “not obligated to search the

record in support of claims made in a defendant’s [SAG].” RAP 10.10(c).

       1.    Matters Outside the Record

       Richter argues that the State failed to provide him with discovery evidence, which

included the CI’s packet, video surveillance, and audio records. Richter and his various defense

counsel requested the CI packet on the record several times, including a final request on the

record on January 21, 2013. The record is silent on whether either Richter or his defense

attorney received the CI packet, video surveillance, or audio records before trial. Without

resorting to conjecture, we cannot address this issue further on this record. Accordingly, we do

not address this argument further. Gauthier, 189 Wn. App. at 43-44.

       Richter makes several other arguments that rely on evidence outside the record on appeal.

Richter argues that that the prosecutor made a deal with the CI in exchange for her false

testimony and that the prosecutor suppressed evidence of the CI’s criminal charges to preserve

her credibility. He also argues that his defense counsel provided ineffective assistance because

defense counsel (1) failed to interview David Child or Sean Griner,8 potential witnesses helpful

to Richter’s case, (2) failed to speak with Richter’s previous attorneys, (3) failed to investigate


8
 In fact, Richter’s defense counsel informed the court that he was planning on calling both
Childs and Griner as witnesses, so the record tends to reflect the opposite of what Richter is
contending. There is no evidence in the record that either person was called as a witness.


                                                 16
No. 46297-4-II


the police reports addressing the police-initiated controlled buys, (4) withheld discovery from

Richter, (5) failed to request a continuance to allow Richter to examine the State’s withheld

discovery, and (6) failed to file a motion that Richter requested to recuse the trial court judge

based on a conflict of interest.

       There is no evidence in the record relating to these claims. We cannot address these

claims without resorting to conjecture. Accordingly, these claims rely on matters outside the

record, which we cannot review. Gauthier, 189 Wn. App. at 43-44.

       2.    Ineffective Assistance of Counsel

       Richter’s SAG makes several additional claims that his defense counsel provided

ineffective assistance. We disagree.

       To prevail on an ineffective assistance of counsel claim the defendant must show that (1)

defense counsel’s representation was deficient, and (2) the deficient representation prejudiced the

defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct.

153 (2014). This court presumes counsel’s performance was not deficient. Id. at 33. The

defendant may rebut this presumption by showing that the performance was not a matter of

legitimate trial strategy or tactics, and fell below an objective standard of reasonableness. Id. To

show prejudice, the defendant must show a “reasonable probability” that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different. State v. Jones,

183 Wn.2d 327, 339, 352 P.3d 776 (2015).

               a.    Severance of Charges

       Richter seems to assert that his defense counsel was ineffective because he failed to make

a motion to sever Richter’s three charges of delivery of a controlled substance. Richter claims



                                                 17
No. 46297-4-II


that had the charges been severed, there would have been insufficient evidence to convict him of

each offense. We hold that even assuming that counsel performed deficiently, Richter’s claim

fails because he cannot show that the trial court probably would 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

to infer a general criminal disposition.” State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916

(2009). 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.” Whether to sever charges is within the trial

court’s discretion. See State v. Huynh, 175 Wn. App. 896, 908, 307 P.3d 788 (2013).

       To determine whether severance is warranted, we consider four factors: “ ‘(1) the

strength of the State’s evidence on each count; (2) the clarity of defenses as to each count;

(3) court instructions to the jury to consider each count separately; and (4) the admissibility of

evidence of the other charges even if not joined for trial.’ ” Sutherby, 165 Wn.2d at 884-85

(quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)).

       Here, the record provides no evidence that the trial court probably would have granted a

motion to sever Richter’s three counts based on the severance factors had defense counsel filed

one.




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No. 46297-4-II


       First, the State presented strong evidence of each count. Two police officers and the CI

testified that Richter transferred methamphetamine to the CI during each controlled buy.

Moreover, there was video evidence of each controlled buy. In this way, each case was strong,

but neither case was stronger than the other such that Richter would be prejudiced by trying the

cases together.

       Second, as Richter admits in his SAG, his defense at trial to all three charges was

attacking the credibility of the police officer witnesses and others who testified. It is unlikely

that trying the charges together would have confused the jurors regarding this defense.

       Third, the trial court informed the jury that it was required to consider each count

separately. There is no reason to believe that the jury disregarded this instruction.

       Fourth, Richter does not contend that evidence of his other charges would not be

admissible even if the counts were not joined for trial. But even assuming that he did, “[t]he fact

that separate counts would not be cross admissible in separate proceedings does not necessarily

represent a sufficient ground to sever as a matter of law.” State v. Kalakosky, 121 Wn.2d 525,

538, 852 P.2d 1064 (1993).

       Here there is no evidence that the trial court would have granted a motion to sever. As a

result, Richter cannot show that defense counsel’s failure to file a motion to sever prejudiced

him. We hold that Richter’s ineffective assistance claim on this basis fails.

                  b.   Impeaching the CI

       Richter asserts that his attorney was deficient for failing to impeach the CI with evidence

that she had called him rather than texted him to arrange a police-initiated controlled buy.

However, this claim is not in accordance with the facts in the record. While questioning the CI,



                                                 19
No. 46297-4-II


Richter’s defense counsel asked whether she actually had voice contact with Richter. This

demonstrates that Richter’s defense counsel actually did attempt to impeach the CI’s credibility

by attempting to get her to admit that she called instead of texted Richter.

       Because Richter’s defense counsel did attempt to impeach the CI, we hold that this

argument has no merit.

               c.   Informant Instruction

       Richter asserts that his attorney was deficient for failing to request an informant

instruction. Richter does not explain what he means by “informant instruction,” but the record

shows that Richter’s attorney did not make a request for an instruction highlighting the CI’s

confidential informant status.

       To establish ineffective assistance of counsel for failing to request an instruction, Richter

must show that he was entitled to the instruction. State v. Olson, 182 Wn. App. 362, 373, 329

P.3d 121 (2014). Richter has failed to make this showing for two reasons. First, independent

research has discovered no cases holding that Washington law requires the trial court to give an

instruction highlighting a confidential informant’s status. Second, Richter does not suggest the

language of his proposed instruction. A trial court is not required to give a proposed instruction

if the instruction does not properly state the law or the evidence does not support it. State v.

Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). Without specific proposed language, we cannot

determine whether Richter was entitled to an “informant instruction.”

       We hold that Richter’s ineffective assistance of counsel argument on this basis fails.




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No. 46297-4-II


       3.      The CI’s Credibility

       Richter argues that the evidence did not support that the CI was a credible witness.

However, we do not address issues of witness credibility on appeal. Instead, we defer to the fact

finder’s measure of witness credibility. See State v. Castillo-Murcia, 188 Wn. App. 539, 354

P.3d 932 (2015). Accordingly, we do not address this issue further.

       4.      Impound of Richter’s Vehicle

       Richter argues that law enforcement’s entry of his vehicle after his arrest to drive the

vehicle to the police impound lot amounted to an unconstitutional seizure of his vehicle. We

disagree.

       Here, the record shows that Richter was arrested on August 28, 2013. Following

Richter’s arrest, Epperson took Richter’s vehicle and drove it to the Longview Police

Department’s secured parking lot. Epperson obtained a warrant to search the vehicle and

executed the search on August 29. He found drug evidence.

       We hold that Epperson lawfully impounded Richter’s vehicle. A vehicle may be lawfully

impounded as evidence of a crime, if the officer has probable cause to believe that the vehicle

was stolen or used in the commission of a felony. State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d

165 (2013). Here, it was reasonable for Epperson to seize Richter’s vehicle to drive to the

Longview Police Department’s secured parking lot because Epperson had probable cause to

believe that the vehicle had been used in the commission of a felony. The vehicle Richter was

driving at the time of his arrest was the same vehicle he had been driving for each drug

transaction.

       Accordingly, we hold that Epperson lawfully impounded Richter’s vehicle.



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No. 46297-4-II


        5.   Judge’s Recusal

        Richter argues that the trial court judge should have recused himself from Richter’s case

based on the judge’s prior family court experience with Richter and his family. We decline to

address this issue because Richter did not raise it in the trial court.

        Richter appears to assert an appearance of fairness claim. Washington Code of Judicial

Conduct (CJC) Canon 3.1 and the appearance of fairness doctrine require a judge to disqualify

himself or herself from a proceeding if the judge is biased against a party or the judge’s

impartiality may reasonably be questioned. State v. Gentry, 183 Wn.2d 749, 761-62, 356 P.3d

714, review denied, (Oct. 2015). Canon 3, Rule 3.1(C) states that judges shall not “participate in

activities that would undermine the judge’s independence, integrity, or impartiality.” Canon 2,

Rule 2.11(A) provides that “[a] judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned.”

        However, we generally will not consider an issue that a party raises for the first time on

appeal unless it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v.

McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). An appearance of fairness claim is not

constitutional in nature under RAP 2.5(a)(3), and therefore, may not be raised for the first time

on appeal. State v. Morgensen, 148 Wn. App. 81, 90-91, 197 P.3d 715 (2008); see also City of

Bellevue v. King County Boundary Review Bd., 90 Wn.2d 856, 863, 586 P.2d 470 (1978) (“Our

appearance of fairness doctrine, though related to concerns dealing with due process

considerations, is not constitutionally based.”).




                                                    22
No. 46297-4-II


        Because Richter did not assert in the trial court that the judge should recuse himself

because of an appearance of fairness, we decline to consider this claim.

        We affirm Richter’s convictions, but remand for resentencing.

        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.



                                                      MAXA, J.



 We concur:




 JOHANSON, C.J.




 MELNICK, J.




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