                                                                       IL ED
                                                             COURT OF APPEALS 0:VI
                                                              STATE OF ‘.-1,4SHINGTOt!

                                                             2017 J1111 -5 Ali 10: 22




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        )      No. 74939-1-1
                    Respondent,         )
                                        )      DIVISION ONE
             V.                         )
                                        )
JOHN DAVID SWANSON,                     )      UNPUBLISHED OPINION
                                        )
                    Appellant.          )      FILED: June 5, 2017
                                        )

      BECKER, J. — The trial court did not abuse its discretion in denying the
appellant's motion to sever the assault and robbery counts. The jury could

reasonably be expected to compartmentalize the simple and discrete evidence of

each crime, the defenses were not contradictory, and the jury was instructed to

decide each count separately. We affirm.

      In April 2015, appellant John Swanson's marriage was deteriorating

According to his wife, he frequently monitored her usage of her computer and cell

phone. On April 28, he confronted his wife on the street as she was on her way

to school and grabbed her arm. When she pulled her arm away, he grabbed her

handbag off her shoulder and ran away. One eyewitness testified she saw a

man pulling a bag from a woman and calling her a bitch. Another witness saw

the man forcefully pushing the woman against a building while trying to get the

handbag. He said a bystander was able to get the handbag before the man fled
No. 74939-1-1/2

into an apartment building. Police who responded to this incident interviewed

Ms. Swanson. She was not sure why her husband took her handbag. She

disclosed that five days earlier, he had shoved her against the wall and pinned

her to the floor in their condominium.

      The State charged Swanson with one count of domestic violence assault

in the fourth degree for the incident inside the condominium on April 23 and one

count of robbery in the second degree for the handbag-grabbing incident on April

28.

       Before trial, Swanson moved to sever the offenses. The trial court denied

the motion.

      At trial, Ms. Swanson was the only witness on the assault count. She

testified that on April 23 when she changed the passwords on her computer and

phone to evade Swanson's constant monitoring of her behavior, he confronted

her in anger, threw her phone in the toilet, and shoved her against the wall. For

the robbery count, she and two of the eyewitnesses described the handbag-

grabbing incident.

       Swanson did not testify and did not present any evidence. In closing

argument, Swanson offered separate defenses for the assault and robbery

charges. His defense to the assault charge was that without corroboration, his

wife's testimony was insufficient. "Any time there's a marriage that's heading

towards divorce, the parties could have powerful motive to spin things to their

advantage... to get leverage in the impending divorce."




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No. 74939-1-1/3

       Swanson's defense of the handbag-grabbing incident was that the State

did not prove he had the intent to steal property belonging to another. The jury

was instructed that the defendant's intent to commit theft of the property was one

of the elements of robbery. The jury was informed that theft means "to wrongfully

obtain or exert unauthorized control over the property or services of another, or

the value thereof, with intent to deprive that person of such property or services."

Swanson argued that everything in the handbag was community property, and so

"this is not a situation where someone is trying to steal something that they have

no right to."

       The jury found Swanson guilty of assault and not guilty of robbery.

Swanson appeals the assault conviction. He contends the trial court erred in

denying his motion to sever the counts.

       Failure to sever counts is reversible only upon a showing that the court's

decision was a manifest abuse of discretion. State v. Bythrow, 114 Wn.2d 713,

717, 790 P.2d 154(1990).

       Defendants seeking severance have the burden of demonstrating that a

trial involving both counts would be so manifestly prejudicial as to outweigh the

concern for judicial economy. Bythrow, 114 Wn.2d at 718. The defendant must

be able to point to specific prejudice. Bythrow, 114 Wn.2d at 720.

       To determine whether to sever charges to avoid prejudice to a defendant,

a court considers "(1) the strength of the State's evidence on each count;(2)the

clarity of defenses as to each count;(3) court instructions to the jury to consider

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


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No. 74939-1-1/4

even if not joined for trial." State v. Sutherby, 165 Wn.2d 870, 884-85, 204 P.3d

916 (2009), quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747(1994). In

Sutherbv, the defendant was granted a new trial when the court concluded

counsel was ineffective in failing to move for severance. Sutherbv, 165 Wn.2d at

887.

       Here, the trial court analyzed the factors bearing on Swanson's motion for

severance. The court stated that it viewed the strength of the State's evidence

on the two charges as about even, then addressed the other three factors:

               More importantly, it strikes me that the defenses are
       consistent here. There is no conflicting defense in this case. The
       defense is not prejudiced by having to advance one defense in one
       case, and another in another case; it's perfectly consistent for Mr.
       Swanson to say, as to the assault, 'It didn't happen," and to say, as
       to the alleged robbery, "I was just getting back property that
       belonged to me, and I always had equal access to her purse," or
       whatever it is that he might say about that.
               I don't think there's any issue here, in terms of jury
       instructions, because this Court has often given the instruction to
       jurors about considering each count separately; and I think jurors
       are very, very good about following that instruction when it's clearly
       given; and I intend to instruct here.
               And, finally. .. although, I don't see how the robbery would
       be cross-admissible, as to the assault—it does seem to me that the
       assault tends to inform both motive and intent in figuring out what
       was going on with this information between Mr. Swanson and Ms.
       Swanson and the purse.
               So, I think I'm within my discretion in keeping those counts
       together. And, I'll tell you that I think it enhances judicial efficiency
       not to have two separate trials, where Ms. Swanson shows up to
       tell us about background and what occurred on these events fairly
       close in time.
               She's a pretty significant witness in this case, and this saves
       us from having to bring in two juries to have her listen to her twice
       about events very close in time; particularly, since at least one of
       those juries would possibly be hearing about two of the events:
       namely, the assault at the same time they heard about the robbery.



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No. 74939-1-1/5

             I don't think it enhances judicial efficiency at all to separate
      these counts; and,for all those reasons, I'm going to deny the
      motion, although it's an interesting one.

Swanson contends that the trial court failed to recognize that the evidence of his

aggressive and forceful conduct during the alleged robbery prejudiced his

defense of the assault charge.

      Swanson first argues the court should have recognized that the State's

evidence on the robbery count was stronger because of the other eyewitnesses.

The number of witnesses is not necessarily determinative of the strength of a

case. It was undisputed that Swanson seized the handbag and ran away with it;

the disputed issue was whether he intended to commit theft. Ms. Swanson, the

only witness who might have had insight into the issue of intent, was not sure

why Swanson took her handbag.

      The major issue Swanson raises is lack of cross admissibility. The trial

court recognized that evidence of the handbag-grabbing incident, which

happened five days after the assault, would not have been admissible to support

the assault charge if there had been separate trials. The only evidence of the

assault was Ms. Swanson's uncorroborated testimony. Swanson argues that the

evidence of his use of force during the alleged robbery was inadmissible

propensity evidence that "would go only to show Swanson's aggressive

disposition" toward his wife, making her account of the assault more plausible.

       Lack of cross admissibility of the evidence may in some cases be so

prejudicial as to require severance. But the fact that separate counts may not be

cross admissible does not represent a sufficient ground for severance as a
No. 74939-1-1/6

matter of law. 6N/throw, 114 Wn.2d at 720. The primary concern is whether the

jury can reasonably be expected to compartmentalize the evidence so that

evidence of one crime does not taint the jury's consideration of the other crime.

%/throw, 114 Wn.2d at 721. When the issues are relatively simple and the trial

lasts only a couple of days, generally it is reasonable to expect that the jury will

compartmentalize the evidence. Bythrow, 114 Wn.2d at 721. If so, there may be

no prejudicial effect from joinder even when the evidence would not have been

admissible in separate trials. %/throw, 114 Wn.2d at 721.

       Here, the alleged crimes occurred on different days in different locations.

The evidence was relatively simple, and it was presented to the jury in just a

couple days. As the trial court noted, Swanson's defenses were not conflicting or

inconsistent.

       In addition, the court instructed the jury to decide each count separately:

"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 have followed this instruction. State v.

Warren, 165 Wn.2d 17, 29, 195 P.3d 940(2008), cert. denied, 556 U.S. 1192

(2009).

       The State's argument was consistent with the instruction to decide each

count separately. "Just because you think he's guilty of assault four doesn't

mean you automatically assume he's guilty of robbery—or vice versa. You have

to consider them independently." The State argued that Ms. Swanson's account

of the assault was credible because of the high level of detail, that credible


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No. 74939-1-1/7

testimony from one witness was sufficient evidence to establish guilt for the

assault, and that what happened on April 23 was relevant to show Swanson's

state of mind on April 28. The State argued that Ms. Swanson's testimony of the

handbag-grabbing incident was credible because of the corroboration by

eyewitnesses. The State did not argue Swanson's use of force against his wife

on April 28 proved that he assaulted her on April 23. In reply, the State argued

that Ms. Swanson's credibility was enhanced by the corroborating eyewitnesses,

but the State was referring to the alleged robbery, not to the assault.

       Under these circumstances, it is not dispositive that the robbery evidence

was inadmissible to support the assault charge. With the pattern instruction to

decide each count separately, the jury could reasonably be expected to

compartmentalize the evidence of the two counts.

       Swanson suggests that there should have been a limiting instruction

directing the jury that evidence of one crime could not be used to decide guilt for

a separate crime. The absence of such an instruction was noted in Sutherbv as

one of the reasons why the charges of child rape and child molestation should

have been severed from the charges of possession of child pornography.

Sutherbv, 165 Wn.2d at 885-86.

      Sutherbv did not hold that a limiting instruction was required, and

Swanson did not ask for one. The absence of a limiting instruction was

significant in Sutherbv because "the State consistently argued that the presence

of child pornography on Sutherby's computers proved he sexually abused" the

victim. Sutherby, 165 Wn.2d at 885.


                                         7
No. 74939-1-1/8

       Swanson had the burden to demonstrate that a trial involving both counts

would be so manifestly prejudicial as to outweigh the concern for judicial

economy. The trial court, having weighed the factors bearing on severance,

decided Swanson did not meet that burden. We find no abuse of discretion.

       Swanson asks that no costs be awarded on appeal. The State does not

respond. Appellate costs are generally awarded to the substantially prevailing

party on review. Swanson was found indigent by the trial court. When a trial

court makes a finding of indigency, that finding remains throughout review

"unless the commissioner or clerk determines by a preponderance of the

evidence that the offender's financial circumstances have significantly improved

since the last determination of indigency." RAP 14.2. If the State has evidence

indicating that Swanson's financial circumstances have significantly improved

since the trial court's finding, the State may file a motion for costs with the

commissioner.

       Affirmed.



                                                          C(e,K) 1'               e

WE CONCUR:                                                     d


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