                                                               2015JUL 15 A;Hh3i




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                              NO. 70704-3-1


                     Respondent,                  DIVISION ONE


                     v.



DAMIAN MACINTOSH WILHELM,                         UNPUBLISHED OPINION


                     Appellant.                   FILED: July 13, 2015



       Lau, J. — Damian Wilhelm appeals his jury trial conviction for a felony violation of

a no-contact order and fourth degree assault involving his girlfriend, Leah Hensel. He

challenges the trial court's ER 404(b) admission of his 2011 domestic violence

conviction against Hensel, denial of his motion to bifurcate the jury trial, and

prosecutorial misconduct in closing argument. Finding no error, we affirm his judgment

and sentence.


                                          FACTS1

       The trial evidence shows the following facts: Damian Wilhelm and Leah Hensel

started dating in 2011. On the evening of March 10, 2013, Wilhelm and Hensel met

Hensel's best friend, Heather Wilmore, for drinks at their Bellevue condominium. They




       1 Wilhelm was convicted four times of domestic violence against Hensel.
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joined a friend, Damian Keitt, at an Auburn bar and continued to drink.2 On the way

back to the condominium, they decided to stop at a QFC for food and cigarettes.

Wilhelm and Hensel went into the store around 3:00 a.m. while Wilmore and Keitt

waited in the car. About 30 to 40 minutes later, they went inside to look for Wilhelm and

Hensel.


       Heather Wilmore


       Wilmore testified that after using the QFC restroom, she heard Wilhelm yelling

angrily at Hensel, calling her "a slut and dirt and a whore and a hoe." Report of

Proceedings (RP) (July 11, 2013) at 80. She heard Hensel crying and asking Wilhelm

to "stop." RP (July 11, 2013) at 79-80. Wilmore saw Hensel seated or kneeling on the

floor as Wilhelm threw boxes of food and cans at her from the store shelf. Wilmore saw

some of the items strike Hensel and Hensel's injured forehead. Wilmore "tried to stop

him" and injured her hand from a box or a can thrown by Wilhelm. RP (July 11, 2013) at

81. Wilmore said Keitt "stopped him" when he "grabbed [Wilhelm's] arms from behind

him."3 RP (July 11, 2013) at 83. "He was just stopping [Wilhelm] from throwing things."

RP (July 11, 2013) at 83. The QFC surveillance video shows that the struggle moved to

the front of the store near the cash registers where it eventually stopped. The video

shows Wilhelm leaving the store. As the video was played, Wilmore described what

took place "beyond the camera shot" that could not be seen in the video. RP (July 11,



         2 This last name is taken from the certificate of probable cause in the record. At
trial, neither Wilhelm nor the other witnesses knew Keitt's last name so he was referred
to as the "other Damian" to avoid confusion with the defendant, Damian Wilhelm.
       3 Keitt did not testify at trial, but the store video recorded portions of the struggle
between Keitt and Wilhelm.
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70704-3-1/3



2013) at 92. Wilmore acknowledged her poor memory and intoxication but testified the

assault stuck out in her mind because she was "not normally around stuff like that." RP

(July 11, 2013) at 88. She also agreed that she could not say where the injury on

Hensel's forehead came from. RP (July 11, 2013) at 108. She maintained that she saw

Wilhelm "throwing things" at Hensel "in the middle of the store." RP (July 11, 2013) at

110.


       Gary Morrison

       QFC store clerk Gary Morrison testified that Wilhelm came into the store

sometime after 2:00 a.m. and asked for the alcohol aisle. Morrison said Wilhelm was


drunk. After Wilhelm walked away, Morrison heard "some arguing and screaming" in

aisle 13. RP (July 11, 2013) at 11 -12, 15. He walked to aisle 13 and saw Wilhelm

yelling at Hensel. She was on her knees with her head down and crying:

       [STATE]: The girl that he was yelling at, was she—which side of the
       defendant was she on, from your vantage point?
       [MORRISON]: He was between me and her, so she was further down—
       on her knees.
              [STATE]: What was he yelling at her?
              [MORRISON]: He was calling her dirt and just yelling at her.
       [STATE]: What was she doing? What were you able to see of what she
       was doing?
       [MORRISON]: It looked like she just had her head down and was kind of
       crying, wasn't really saying much.
               [STATE]: Okay. What was he[r] position on the ground?
               [MORRISON]: On her knees.

RP(July 11, 2013) at 13-14.

       Morrison said during the "arguing and screaming" the "other couple [Keitt and

Wilmore] came over [to aisle 13] and the arguing got louder." RP (July 11, 2013) at 14-

15. The store video shows them running over to aisle 13 from an adjacent aisle.

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Morrison turned to walk back to the front of the store but returned to the aisle when he

heard arguing, screaming, and crashing sounds. He saw Keitt "behind the defendant. .

. with his arms around his neck area. . . . [T]rying to subdue [Wilhelm], pull him down. . .

. [To] keep [Wilhelm] from fighting. ... He did hold [Wilhelm] down a little—for a little

while." RP (July 11, 2013) at 17. He saw Keitt wrestling with Wilhelm:

       [STATE]: Okay. And once you came back to the aisle, aisle 13, what did
       you see?
       [MORRISON]: I saw [Keitt] and him and the—Wilhelm fighting.
       [STATE]: Okay. How did they—what were they doing in terms of
       fighting? How were they fighting? Who was doing what? Ifyou could just
       take me step by step.
       [MORRISON]: Well, [Keitt] kind of grabbed [Wilhelm], was mostly just
       trying to wrestle. They were wrestling mostly. They were—weren't
       throwing [p]unches but just mostly wrestling.

RP (July 11, 2013) at 16.

       Morrison heard Keitt4 yelling at Wilhelm "that he shouldn't hit a girl." RP (July 11,

2013) at 19.

       He also testified that while watching the struggle, both Wilmore and Hensel were

shouting out to call the police. After Morrison pulled Wilhelm and Keitt apart, Wilhelm

walked out of the store. Morrison said he saw "[a] cut on [Hensel's] forehead." RP (July

20, 2013) at 20. He also said "[Wilhelm] was yelling at this girl [Hensel]. . . just really

didn't make that much sense. He was just kind of just yelling and just kind of seemed

out of control." RP (July 11, 2013) at 23.

       Morrison cleaned and picked up items from the floor of aisle 13. He said the

struggle between Wilhelm and Keitt caused food items from the shelf to fall to the floor.



       4 Morrison's trial testimony referred to Keitt as the "black male."
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70704-3-1/5



He said after the fight broke up, Wilmore "was trying to talk her friend into pressing

charges on [Wilhelm]." RP (July 11, 2013) at 21. The State played the store video as

Morrison described the actions of Wilhelm, Hensel, Wilmore, Keitt and himself depicted

in the video. Morrison said Wilmore and Hensel remained at the store talking to police

officers. In response to the prosecutor's question about Hensel's emotional state,

Morrison said she was, "[j]ust real anxious and wondering what she should do. ... Her

eyes were just red from just crying and stuff and she just looked like she was—been

crying a lot." RP (July 11, 2013) at 21.

       Officer Dustin Huberdeau

       Police officers arrived approximately seven minutes after the 911 call. Issaquah

Police Officer Dustin Huberdeau contacted Hensel as she walked through the QFC

parking lot. A store employee pointed Hensel out to Officer Huberdeau, "indicating that

she was involved somehow in this fight." RP (July 11, 2013) at 162. Officer Huberdeau

said he asked Hensel "to come over to me" and she complied. RP (July 11, 2013) at

162. She told Officer Huberdeau "that she was 'drunk.'" RP (July 11, 2013) at 162.

       He saw a bloody cut on her hairline and a broken fingernail. This indicated to

him that Hensel "was involved in some type of struggle with breaking a fingernail as well

as the cut to her head." RP (July 11, 2013) at 165. He noted that she appeared

intoxicated, unstable on her feet, and held a man's wallet in her hand. She "indicated

[the wallet] wasn't hers." RP (July 11, 2013) at 163. When he requested Wilhelm's
identification, she handed it to him but refused to give Officer Huberdeau Wilhelm's

wallet. He asked her how she got the injury. Hensel told Officer Huberdeau that

Wilmore injured her in a fight. Officer Huberdeau asked her again how she got injured
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and she said that "she fell down." RP (July 11, 2013) at 183. She also said she did not

know about the forehead injury until he pointed it out to her. When the prosecutor

asked Officer Huberdeau "what could you tell about her? What could you see about

her?" RP (July 11, 2013) at 168. He described what he observed:

      She was very—I mean, with most intoxicated people, you're very up and
      down emotionally. You know, she was very calm, thought things were
      funny at one point and then she became very serious and shut down. And
      then she would be, again, you know, more light—lighthearted essentially,
      telling me stuff and then brought it back to, you know, doesn't want to say
      anything.

RP (July 11, 2013) at 168.

      Hensel told Officer Huberdeau that she was not supposed to be with Wilhelm.

She refused to cooperate and declined to give Officer Huberdeau a statement about

what happened. She said she did not want to cause trouble for Wilhelm.

      [STATE]: Officer Huberdeau, did Ms. Hensel tell you why she did not want to tell
      you—or talk to you or give you a statement?
       [OFFICER HUBERDEAU]: She indicated she didn't want to get her boyfriend in
      trouble because she knew he wasn't supposed to be with her.

RP (July 11, 2013) at 182.

       Officer Huberdeau testified that after Miranda warnings, Wilhelm denied being

present at the QFC and denied he knew Hensel. Wilhelm later admitted he knew

Hensel but denied that they were dating.

       Officer Scott Geiszler

       Issaquah Police Officer Scott Geiszler testified that when he arrived, Hensel was
walking around outside calling out Wilhelm's name. She was "visibly upset," "crying,"
and "hysterical." RP (July 15, 2013) at 13. Officer Geiszler said she appeared
intoxicated. He said Hensel was "not very cooperative" with police about what
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70704-3-1/7



happened. RP (July 15, 2013) at 14, 16. Officer Geiszler told her that "it wasn't okay

for her to be beaten, for her to be assaulted." RP (July 15, 2013) at 16. Officer Geiszler

tried to persuade Hensel to give him a statement about what happened. He told her

about "[domestic violence] programs out there to help her with the situation." RP (July

15, 2013) at 16. Hensel responded by telling Officer Geiszler that she loved Wilhelm

and did not want to get him in trouble. She did not deny or correct Officer Geiszler's

comment about her being beaten or assaulted. She let Officer Geiszler photograph her

injury but refused to allow him to photograph her face and refused to give him a

statement. The court admitted two photographs depicting Hensel's injury. The

photographs show a fresh injury on Hensel's forehead at her hairline.

      On cross-examination, Officer Geiszler testified about the statement he took over

the telephone from Wilmore. She told him she witnessed "things being thrown at Ms.

Hensel. .. . [S]he stated it may have been ... a box or [canned] food." RP (July 15,

2013) at 23. Officer Geiszler also explained that after talking to Keitt and Wilmore about

a report of "two males in a fight," he learned about an "assault between a man and a

woman." RP (July 15, 2013) at 25.

       Police Sergeant Jeffrey Johnson

       Issaquah Police Sergeant Jeffrey Johnson saw Hensel walking around the

parking lot calling out Damian's (Wilhelm) name. He talked to Wilmore in the store and

noticed that she had been drinking. He said Wilmore "was upset," "shaking," and her

voice was "shaky." RP (July 15, 2013) at 34. Wilmore told Sergeant Johnson that "she

had walked into the store to find her friend, Ms. Hensel, and found her friend, [Hensel]

was on the floor being hit in the head by her boyfriend with a can of goods from the
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70704-3-1/8



store." RP (July 15, 2013) at 35. Sergeant Johnson noticed "a small cut. . . on

[Wilmore's] hand." RP (July 15, 2013) at 35.

      Sergeant Johnson located Wilhelm walking on a road not far from the QFC.

Sergeant Johnson ordered Wilhelm twice to stop. Wilhelm "took off running ... [a] full

sprint" through a heavily vegetated area down a steep embankment towards a culvert

that drains water out towards a lake. RP (July 15, 2013) at 40. Officers found Wilhelm

"down in the creek underneath the overhang of the grass . . . tucked in towards the

culvert. . . laying on his stomach." RP (July 15, 2015) at 43. After repeated officer

commands to "[s]how us your hands" and "[c]ome out," he finally got up and

surrendered to the officers who arrested him. RP (July 15, 2013) at 43. According to

the officers, Wilhelm "smelled pretty strong of intoxicants." RP (July 15, 2013) at 44.

       Detective Brian Horn

       Detective Brian Horn testified about certified court records, exhibits 14, 15, 16,

and 17, admitted at trial establishing the existence of two prior domestic violence no-

contact orders and Wilhelm's two prior domestic violence no-contact order convictions

all involving Hensel.

       Leah Hensel

       At trial, Hensel testified in response to the prosecutor's question "[w]hat do you

want to have happen in this case?" RP (July 11, 2013) at 119. She said she wanted

Wilhelm "to get in as less trouble as possible" and for him to "get better." RP (July 11,
2013) at 120. She responded to details about what happened before going to QFC.
She remembered going inside QFC with Wilhelm to buy food and cigarettes. When

questioned about the assault, she claimed no memory of what happened because she
                                             -8-
70704-3-1/9



"blacked out" (presumably due to intoxication). Her memory returned when Wilhelm ran

out of the store when "Heather said the police were coming." RP (July 11, 2013) at 125.

She remembered talking to police officers and refusing to cooperate because she "didn't

want to get [Wilhelm] in trouble [for] being with me." RP (July 11, 2013) at 126. She

testified that Wilhelm knew "we had a no contact order." RP (July 11, 2013) at 126.

She "felt horrible" when police arrested Wilhelm. RP (July 11, 2013) at 126. She

remembered the cut to her forehead but "[didn't] know what it was from." RP (July 11,

2013) at 127. She remembered the police photographed the injury. She read to the

jury her written victim impact statement. In it she wrote, "I want him to not be in jail for

this ... I love him and he doesn't deserve this. . . . There's nothing wrong with [our]

relationship." RP (July 11, 2013) at 131-33. She was shown the store video but denied

it revived her memory about the assault. She acknowledged that Wilhelm previously

assaulted her in September 2011, she had forgiven him, and they got back together.

She also acknowledged that she has "forgive[n] him now for what happened here." RP

(July 11, 2013) at 139. Finally, she said she could not imagine life without him.

       On cross-examination, she said about the 2011 assault conviction, her memory

of it was unclear due to alcohol consumption. She refused to cooperate with the police

investigation, and she "didn't want him to get in trouble." RP (July 11, 2013) at 141-42.

She said she did not recall how she got the cut on her forehead. Defense counsel

suggested to her "it [could have] been caused by yourself or by anything that night. . . .

So it could have come from you stumbling or falling, correct[?]" RP (July 11, 2013) at

145-46. She answered, "It could have, yeah." RP (July 11, 2013) at 146. She

acknowledged that testifying in the case would not stop her from being with Wilhelm.
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       On redirect, the prosecutor asked her to confirm that she never told police

officers, "I don't remember what happened. That's not what you told them, correct?"

Hensel answered, "[c]orrect. ... I'm pretty sure they just asked me for a statement and I

refused." RP (July 11, 2013) at 150.

       Wilhelm did not testify or present evidence at trial.

       The State charged Wilhelm with one count of felony violation of a no-contact

order and third degree assault.5 The court gave the jury two written limiting instructions.

Jury instruction 4 instructed the jury that it may consider the fact of Wilhelm's 2011

assault conviction against Hensel only for the limited purpose of "assessing the

credibility of Leah Hensel and explaining the inconsistencies in her testimony." Clerk's

Papers (CP) at 38.

       Jury instruction 5 limited the purpose of Wilhelm's two prior no-contact order

convictions to determining an essential element of the felony no-contact order violation

charge.

       Evidence has been introduced in this case on the subject of two prior
       convictions for violating the provisions of an order for the limited purpose
       of proving the element: subsection (4)(b) of the Violation of a No Contact
       Order Jury Instruction. You must not consider this evidence for the
       purpose of determining whether the order was violated in this case. You
       may not consider it for any other purpose. Any discussion of the evidence
       during your deliberations must be consistent with this instruction.

(CP) at 39.

       The jury found Wilhelm guilty of felony violation of a court order and the lesser

degree offense offourth degree assault. On a special verdict form, the jury found that


       5 For the felony violation of a no-contact order charge, the State alleged the
alternative means of an assault or two prior convictions for violating a court order.
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Wilhelm and Hensel were members of the same family or household at the time the

crimes were committed.

       Wilhelm appeals.

                                        ANALYSIS


      Admissibility of ER 404(b) Evidence

       Wilhelm challenges the trial court's ruling admitting his 2011 assault conviction of

Hensel for impeachment purposes. He argues the prior assault "did not assist in any

credibility determination and did not explain any 'inconsistency' in [Hensel's] testimony.

Hensel simply did not remember what happened inside the store." Appellant's Br. at 14.

       Before trial, the State moved under ER 404(b) to introduce Wilhelm's 2011 and

2012 assault convictions involving Hensel. It argued that the convictions "encompasses

what Baker was addressing . . . inconsistency of victim's statements." RP (July 9, 2013)

at 49. It also argued the prior convictions would allow the jury to better assess Hensel's

credibility and understand the context of their relationship. The State made an offer of

proof as to Hensel's expected trial testimony:

      Ms. Hensel... is expected to not at this point to fully recant, but she has
      given several different statements since the time this happened. At the
      scene [Hensel] first said, "I fell down, that's how I got this injury," and then
      she said "Actually, my friend Heather," the other witness there, She—"she
      pushed me and she fought with me. She hurt me." And then she talked to
      the officer. . . about how much she cared about the defendant, how she
       didn't want to get him into trouble, that she knew there was a no-contact
       order. . . But she was displaying ... a woman who was in clear conflict.

RP (July 9, 2013) at 49-50.

       Defense counsel argued to the trial court that Hensel's expected trial testimony

will consist of her saying she doesn't remember what happened, therefore, there is no

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inconsistent testimony to impeach. He also argued the relevance of the two prior

assaults is outweighed by the prejudice to Wilhelm.

      The trial court conditionally admitted the 2011 assault conviction but only if

Hensel's trial testimony was inconsistent with her prior out of court statements.6

             I'm assuming about [the State's] statements on the night in
      question about [the State's] proffer of what her statements are, that she
      will testify to conflicting versions of events.
               If, in fact, she does not, if she testifies in accord with her statements
      to police on the night in guestion, the court ruling does—the state is not
      permitted to use the 404(b). So if she comes to court and says exactly
      what she told police on the night in guestion and she doesn't testify in
      conflict with it, then there's no conflicting testimony.
             But in the event, as stated by counsel, that there is a conflict in the
      testimony, then the court has to analyze whether there's a 404(b) purpose
      for which the evidence is sought to be introduced. The purpose appears
      to be to prove the assault three that is alleged, which is a legitimate
      purpose and appears to be relevant.
               The real issue is whether the probative value outweighs the
      prejudicial effect. It is clear under fMagers] that ifwe have a recanting
      victim, this type of evidence is admissible for determining credibility. In
      Baker, [162 Wn. App. 468, 259 P.3d 270 (2011)] the court opened that up
      further to explain prior failures to report, minimization of violence, conflict
      in history, violations of prior court orders or committed contact. Those
      issues are applicable in this case. The probative value is high. The
      prejudicial effect obviously is high as well.

RP (July 9, 2013) at 61-62 (emphasis added).

       The court's written findings of fact and conclusions of law reflect its oral ruling:

       2. The Court makes a finding that the probative value of the following
       incidents is not outweighed by the danger of unfair prejudice or confusion
       of the issues. The Court has relied on the following cases in assessing
       whether the State's evidence should be admitted at trial: State v. Grant,
       State v. Baker, and State v. Magers. [83 Wn. App. 98, 920 P.2d 609
       (1996); 162 Wn. App. 468, 259 P.3d 270 (2011); 164Wn.2d 174, 189
       P.3d 126 (2008)]. While the facts themselves are not favorable to the


      6 The court excluded the 2012 assault conviction because the facts of that
assault were too similar to the facts in the present case.
                                             -12-
70704-3-1/13



       defendant, the evidence is highly probative for specific purposes and there
       is no other, less prejudicial means of admitting the same information.

       3. The Court admits evidence of the defendant's September 2011
       conviction of Assault 4th Degree—DV against Leah Hensel, predicated on
       Ms. Hensel actually testifying to conflicting versions of the events. The
       evidence of the September 2011 assault serves to elucidate Ms. Hensel's
       state of mind, which is relevant for the purpose of assessing her credibility,
       which will be a central issue during the State's case in chief. The jury is
       entitled to assess evidence of the victim's credibility with full knowledge of
       the dynamics of a relationship marked by domestic violence. Particularly
       in this case, the jury will need to assess Ms. Hensel's behavior, including
       why she did not report the assault to the police herself, why she invited
       contact with the defendant despite the no contact orders, and why she
       was reluctant to cooperate with police or the prosecution. In light of Ms.
       Hensel's inconsistent acts, the defendant's prior bad acts help explain the
       context of the relationship, her minimization/denial of the incident, and her
       state of mind and credibility.

CP at 77 (emphasis added).

       Waiver


       We first determine whether Wilhelm's challenge to the admission of the 2011

assault conviction is properly before us. Where evidentiary rulings are made based on

a motion in limine, the losing party has a standing objection if the judge made a final

ruling, unless the trial court indicates that further objections will be required at trial.

State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). When a ruling on a motion

in limine is tentative, however, "any error in admitting or excluding evidence is waived,

unless the trial court is given an opportunity to reconsider its ruling." Powell, 126 Wn.2d

at 256 (quoting State v. Carlson. 61 Wn. App. 865, 875, 812 P.2d 536 (1991)). The

Supreme Court further explained:

       "If the trial court has made a definite, final ruling, on the record, the parties
       should be entitled to rely on that ruling without again raising objections
       during trial. When the trial court refuses to rule, or makes only a tentative

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      ruling subject to evidence developed at trial, the parties are under a duty
      to raise the issue at the appropriate time with proper objections at trial."

Powell, 126 Wn.2d at 256 (quoting State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456

(1984) (emphasis added) overruled on other grounds by State v. Brown, 111 Wn.2d

124,761 P.2d 588 (1988)).

      Here, the trial court's ruling was predicated on Hensel testifying inconsistently:

      The Court admits evidence of the defendant's September 2011 conviction
      of Assault 4th Degree—DV against Leah Hensel, predicated on Ms.
      Hensel actually testifying to conflicting versions of the events.

CP at 77 (emphasis added).

      Quoted above, both the court's oral and written ruling made clear that admission

of the ER 404(b) evidence was not final and predicated on whether Hensel's trial

testimony was inconsistent with her prior out of court statements. Defense counsel

never re-raised the prior assault evidence issue again at trial or objected to its

admission when the State first questioned Hensel about the 2011 assault conviction at

trial. After sustaining a defense objection as to only the form of the question, the State

asked Hensel about Wilhelm's 2011 assault conviction. Wilhelm did not object despite

an opportunity to do so.

       [STATE]: Isn't it true that you actually do remember what happened that
       night but you simply [don't] want to get him in any trouble?
       [HENSEL]: No.
               [DEFENSE COUNSEL]: Objection, argumentative, Your Honor.
               [THE COURT]: Sustained. The court will strike the question and
       answer.
               [STATE]: Your Honor, this is going to go into our pretrial. Do I
       lead?
               THE COURT: Go ahead.
       [STATE]: Ms. Hensel, Mr. Wilhelm was convicted ofassaulting you in
       September of 2011, wasn't he?
               [HENSEL]: Yes.
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RP (July 11, 2013) at 138-39.

      We conclude that Wilhelm's failure to object to the trial court's tentative pretrial

ruling on the admission of the 2011 assault conviction at trial constitutes waiver of that

issue on appeal.

       ER 404(b)

       But even if we assume Wilhelm properly preserved this issue for review, the trial

court properly admitted his 2011 assault conviction for a nonpropensity purpose.

       We "review the trial court's interpretation of ER 404(b) de novo as a matter of

law." State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). The trial court's

decision to admit or exclude evidence is reviewed for abuse of discretion. State v.

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Atrial court abuses its discretion

when its decision is manifestly unreasonable or based on untenable grounds, such as

the misconstruction of a rule. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546

(1997).

       ER 404(b) is a categorical bar to the admission of evidence of prior bad acts for

the purpose of proving a person's character and showing that the person acted in

conformity with the character.7 State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207

(2012). But the same evidence may be admissible for another purpose, depending on




        7 ER 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
                                            -15-
70704-3-1/16



its relevance and the balancing of its probative value and danger of unfair prejudice.

Gresham. 173 Wn.2d at 420.

          Before admitting evidence of past crimes, the trial court must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) identify the purpose

for which the evidence is offered, (3) determine if the evidence is relevant to prove an

element of the crime charged, and (4) weigh the probative value of the evidence against

its prejudicial effect. In re Pet, of Coe. 175 Wn.2d 482, 493, 286 P.3d 29 (2012). It is

undisputed that the trial court's oral and written findings support its ruling.

       Wilhelm specifically argues that Hensel's lack of memory trial testimony is not

inconsistent with her out of court statements. We disagree. Viewed in the context of all

the evidence presented at trial and her own out of court statements, Hensel's lack of

memory claim at trial directly conflicted with her out of court statements. By the end of

the trial even defense counsel acknowledged Hensel's inconsistent statements.8

Defense counsel told the jury, "we all know that [Hensel] is somewhat not a credible

witness. I mean, the [S]tate impeached her with prior inconsistent testimony. . . . [U]se

that assault to assess her credibility, .... [S]he's not a very credible witness . . . [b]ut

just because she's not credible doesn't mean an assault happened." RP (July 15, 2013)

at 131.




      8 Arguably defense counsel's tactical decision not to object at trial to the assault
conviction's admission supported the ER 404(b) limiting instruction he proposed and
challenges on appeal. That instruction told the jury to use the conviction only to assess
Hensel's "credibility" and "inconsistencies." CP at 38. As Wilhelm's closing remarks
show, from that limiting instruction he argued Hensel's questionable credibility and her
inconsistent statements.
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        The State relied on State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996), State v.

Magers, 164 Wn.2d 174, 189 P.3d 126 (2008), and State v. Baker, 162 Wn. App. 468,

259 P.3d 270 (2011). In Grant, the victim initially refused to identify her husband as the

attacker but later did so when removed from his presence. Grant, 83 Wn. App. at 101-

02. This court held that prior assaults by a husband against his wife were admissible to

explain the wife's "inconsistent statements and conduct" and why she minimized the

violence. Grant, 83 Wn. App. at 109. The State introduced the prior assaults at trial

through the victim's therapist. We reasoned, "The jury was entitled to evaluate her

credibility with full knowledge of the dynamics of a relationship marked by domestic

violence and the effect such a relationship has on the victim." Grant, 83 Wn. App. at

108.9

        Our Supreme Court cited Grant with approval in State v. Magers. There, the

victim appeared frightened and initially denied that the defendant was in her home.

When police asked her to step outside, she admitted the defendant was inside and

stated he was violent, going to hurt her, and asked police not to tell him she said he was

inside. Magers, 164 Wn.2d at 178-79. The victim later recanted in two letters to the

prosecutor and repeated this recantation at trial. Magers, 164 Wn.2d at 179-80. The

court concluded that, "prior acts of domestic violence, involving the defendant and the




        9 Division Two of this court agreed with the Grant court's conclusion that prior
incidents of domestic violence can be admissible to "assess the state of mind of an
individual whose acts are inconsistent with a report of abuse." State v. Cook, 131 Wn.
App. 845, 852, 129 P.3d 834 (2006). But the court rejected the notion that such
evidence should be admissible as probative of the victim's credibility. Cook, 131 Wn.
App. at 851.
                                            -17-
70704-3-1/18



crime victim, are admissible in order to assist the jury in judging the credibility of a

recanting victim." Magers. 164 Wn.2d at 186.

       In Baker, the court held that evidence of two prior assaults by the defendant

against his girlfriend were relevant to show the defendant's motive, prove lack of

accident or mistake, and to aid the jury's assessment of the girlfriend's credibility.

Baker, 162 Wn. App. at 474-75. In so deciding, the court stated that the holdings in

Grant and Magers were not limited to instances where the victim recanted.

       In State v. Gunderson, 181 Wn.2d 916, 337 P.3d 1090 (2014),10'11 the State

charged Gunderson with one count of domestic violence felony violation of a court order

for an alleged assault of his girlfriend, Christina Moore. She provided no statements

about the incident. At trial, Moore denied any assault by Gunderson. The State tried to

impeach Moore by introducing Gunderson's prior domestic violence against her.

Gunderson objected on ER 404(b) grounds but the trial court admitted the evidence.

Bonnie, Moore's mother, denied she saw Gunderson assault Moore and claimed faulty

memory. She also said Gunderson was "[p]robably defending himself." Gunderson,

181 Wn.2d at 920. The State introduced Bonnie's 911 call. The call indicated she was

panicked and repeated Gunderson hit Moore. Bonnie's police statement, read to the


       10 The Washington Supreme Court issued its opinion in State v. Gunderson after
the parties completed their briefing. We ordered the parties to submit supplemental
briefing on the effect, if any, of Gunderson on the present case.
        11 After oral argument Wilhelm submitted a Statement of Additional Authorities.
The filing included a copy of the State's motion for reconsideration in Gunderson. In its
motion, the State asked the court to modify its original opinion to clarify that a victim's
inconsistent acts could also be a basis for admitting prior assaults involving the
defendant and the victim. The court denied the motion on January 13, 2015.
      Wilhelm's submission of the State's reconsideration motion is unhelpful. The
Supreme Court denied the motion without providing a rationale.
                                             -18-
70704-3-1/19



jury, said Gunderson hit Moore and he kicked and hit her also. The jury convicted

Gunderson as charged.

      The Supreme Court explained that in Magers, "we took great care to specifically

establish that 'evidence that [the defendant] had been arrested for domestic violence

and fighting and that a no-contact order had been entered following his arrest was

relevant to enable the jury to assess the credibility of a [complaining witness] who gave

conflicting statements about [the defendant's! conduct.'" Gunderson. 181 Wn.2d at 923-

24 (alteration in original) (quoting Magers, 164 Wn.2d at 186). The State conceded on

appeal that Moore's testimony was "internally consistent." Gunderson, 181 Wn.2d at

924. Nonetheless the State maintained that the ER 404(b) evidence was proper

because "other evidence contradicted [Moore's] account." Gunderson, 181 Wn.2d at

924. In rejecting this approach, the court reasoned that "evidence from a different

source" alone, does not establish the relevance of domestic violence history.

Gunderson, 181 Wn.2d at 924. That Moore "gave no conflicting statements about

Gunderson's conduct" was a significant factor in the court's rejection of the State's

reliance on other inconsistent evidence: "We decline to extend Magers to apply in such

circumstances." Gunderson, 181 Wn.2d at 924. The court reasoned, "the mere fact

that a witness has been the victim of domestic violence does not relieve the State of the

burden of establishing why or how the witness's testimony is unreliable." Gunderson,

181 Wn.2d at 924-25. Accordingly, the court held:12


        12 In Gunderson, the court made it manifestly clear that its opinion should not be
read to mean that only instances of the victim's recantation or inconsistent account
satisfies the stringent ER 404(b) probative versus prejudice analysis:

                                           -19-
70704-3-1/20



      To guard against this heightened prejudicial effect, we confine the
      admissibility of prior acts of domestic violence to cases where the State
      has established their overriding probative value, such as to explain a
      witness's otherwise inexplicable recanting or conflicting account of events.
      Otherwise, the jury may well put too great a weight on past conviction and
      use the evidence for an improper purpose. Accordingly, we decline to
      extend Magers to cases where there is no evidence of injuries to the
      alleged victim and the witness neither recants nor contradicts prior
      statements.


Gunderson. 181 Wn.2d at 925 (emphasis added) (citations omitted)13

      Wilhelm contends that Hensel's testimony about not remembering what

happened the night of the assault cannot be considered the type of "conflict" described

in Magers. According to Wilhelm, Hensel did not change her story, recant, or state that

she feared reprisals for testifying. She just forgot what happened. Thus, Wilhelm



      This opinion should not be read as confining the reguisite overriding
      probative value exclusively to instances involving a recantation or an
      inconsistent account by a witness. We are inclined to agree with the
      dissent that it may be helpful to explain the dynamics of domestic violence
      when offered in conjunction with expert testimony to assist the jury in
      evaluating such evidence. See, e^, Grant, 83 Wn. App. at 108. We
      decline, however, to establish an advisory list of possible scenarios.
Gunderson, 181 Wn.2d at 925 n.4.
       13 In a footnote, the Gunderson court addressed Baker and Grant. It observed
that Grant concluded that the defendant's prior bad acts were admissible to explain
inconsistencies in the victim's testimony and why the victim permitted the defendant to
see her despite the no-contact order. But it stated, "Perhaps most importantly, '[t]he
State sought to admit evidence ofthese dynamics through testimony of [the victim]'s
therapist.'" Gunderson, 181 Wn.2d at 924 n.2 (alteration in original) (quoting Grant, 83
Wn. App. at 108).
       In regards to Baker, the court wrote:
       While Baker in passing suggests prior acts of domestic violence might
       always be admissible, the evidence in that case was clearly admissible to
       explain why the victim did not report prior times the defendant attempted
       to strangle her and to rebut the defendant's theory that the strangulation
       was accidental.
Gunderson, 181 Wn.2d at 924 n.2.

                                           -20-
70704-3-1/21



argues his case is materially indistinguishable from Gunderson and the ER 404(b)

evidence should be excluded and his conviction reversed.

        We disagree. Contrary to Wilhelm's claim, a trial court retains discretion to

determine inconsistency based on the entire impression or effect of a witness's

testimony:

        "Inconsistency is to be determined, not by individual words or phrases
        alone, but by the whole impression or effect of what has been said or
        done. On a comparison of the two utterances are they in effect
        inconsistent? Do the two expressions appear to have been produced by
        inconsistent beliefs?"

State v. Dickensen, 48 Wn. App. 457, 467, 740 P.2d 312 (1987) (quoting 5 K. Tegland,

Washington Practice: Evidence § 256 (2d ed. 1982)).

        Indeed, "'[l]f the witness testifies at trial about an event but claims to have no

knowledge of a material detail, or no recollection of it, most courts permit a prior

statement indicating knowledge of the detail to be used for impeachment.'" State v.

Newbern, 95 Wn. App. 277, 292, 975 P.2d 1142 (1999) (quoting 5A Karl B. Tegland,

Washington Practice: Evidence § 256, at 309 (3d ed. 1989)). It is true that if a witness

gives no substantive testimony because of a lack of memory, a prior statement is

inadmissible regardless of whether the lapse of memory is genuine because there is no

testimony to impeach.14 Newbern, 95 Wn. App. at 292 (citing 5A Tegland, §256, at

310).




       14 This is the evidentiary concern addressed in Gunderson. 181 Wn.2d at 925
n.3. In other words, there is nothing to impeach if the witness makes no statement at all
about the incident.
                                              -21-
70704-3-1/22



       This case is unlike the facts in Gunderson. There, the victim suffered no injury

and provided no statements. In this case, Hensel sustained a visible forehead injury

and made statements to police officers that are inconsistent with her trial testimony. At

trial, Hensel's claim she was "drunk" and "blacked out" (which accounts for why she

could not recall the assault), is inconsistent with her statement to the officers. Instead of

telling them she could not remember what happened because she was "drunk" and

"blacked out," she told them two conflicting versions of what happened—her friend

injured her and she fell down on her own. Both versions are inconsistent with Hensel's

"I don't remember what happened" trial testimony.15 She made several other

statements to officers, summarized above, that are inconsistent with her loss of memory

at trial. Hensel also undermined her own trial testimony when she acknowledged on

cross-examination that the forehead cut could have occurred from falling or stumbling

even though she said she could not remember what happened. Courts have discretion

in determining whether a claimed failure of memory is genuine. See e.g. United States

v. Rogers, 549 F.2d 490, 496 (8th Cir. 1999) ("A claimed inability to recall, when

disbelieved by the trial judge, may be viewed as inconsistent with previous statements

when the witness does not deny that the previous statements were in fact made"). We

conclude the trial court properly admitted Wilhelm's 2011 assault conviction after

carefully analyzing its admission under the rules governing admission of ER 404(b)

evidence.




       15 Hensel's "black out" that she said accounts for her lack of memory presumably
occurred on the night of the assault and not at trial.
                                            -22-
70704-3-1/23



       Harmless Error

      The State argues that even if the trial court erred by admitting Wilhelm's prior

conviction the error was harmless. We agree.

       In analyzing the erroneous admission of evidence in violation of ER 404(b), we

apply the nonconstitutional harmless error standard. Gunderson, 181 Wn.2d at 926.

This determination involves, "'within reasonable probabilities, had the error not

occurred, the outcome of the trial would have been materially affected.'" State v.

Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (quoting State v. Smith, 106

Wn.2d 772, 780, 725 P.2d 951 (1986)).

       As summarized above, the evidence of guilt against Wilhelm was

overwhelming.16 The State presented the testimony of Heather Wilmore, Gary

Morrison, Officer Huberdeau, Officer Geiszler, Sergeant Johnson, Detective Horn, and

Leah Hensel. The jury viewed the store video which corroborated, in part, the testimony

of Wilmore and Morrison. The jury also saw photographs of Hensel's forehead injury.

The State presented certified copies ofWilhelm's two previously issued domestic
violence no-contact orders and his two prior orders for judgment and sentence for the

crimes of violation of no-contact order. Each one of these certified copies were signed


      16 The to convict jury instruction for the lesser degree crime offourth degree
assault states in part that the State must prove beyond a reasonable doubt, "that the
defendant assaulted Leah Hensel." CP at 53. The jury instruction defines an assault
as:
       An assault is an intentional touching or striking or cutting of another
       person, with unlawful force, that is harmful or offensive regardless of
       whether any physical injury is done to the person. Atouching or striking or
       cutting is offensive if the touching or striking or cutting would offend an
       ordinary person who is not unduly sensitive.
CP at 42.
                                            -23-
70704-3-1/24



by Wilhelm. During defense counsel's closing remarks, he conceded that the video

shows Wilhelm was in violation of the no-contact order. He argued to the jury, "this

video which really doesn't show anything but a picture of Mr. Wilhelm there in violation

of the no contact order. But it doesn't prove the assault." RP (July 15, 2013) at 127

(emphasis added). Thus, under the instructions given at trial, the State's theory of the

case, and the evidence established at trial, Wilhelm's "intentional touching, striking or

cutting" of Hensel by throwing boxes and or cans of food items at her "regardless of any

physical injury" constituted fourth degree assault. In other words, regardless of whether

her forehead injury was caused by Wilmore or falling, proof of physical injury is not an

essential element of fourth degree assault.

       Hensel's best friend, Heather Wilmore heard arguing and crying. She witnessed

Hensel kneeling on the floor as Wilhelm hurled boxes and cans at Hensel. Wilmore saw

the items make contact with Hensel's body and she saw Hensel's injured forehead.

Wilmore's hand was also injured from items thrown by Wilhelm. An officer noted her

hand injury. She watched as Keitt struggled to restrain Wilhelm.

       Store clerk Gary Morrison provided similar testimony. He also heard arguing,

screaming, and crashing sounds. He saw Hensel on her knees crying. He saw an "out

of control" Wilhelm yelling and calling Hensel names. RP (July 11, 2013). He saw her

forehead injury. He watched as Keitt physically intervened to prevent Wilhelm from
further harming Hensel. He heard Keitt say to Wilhelm, you "shouldn't hit a girl." RP
(July 11, 2013) at 19. He picked up food items from the floor and reshelved them after
the fight ended. He saw Wilhelm, Hensel and Keitt talking to the police officers.


                                              -24-
70704-3-1/25



       The store video shows Keitt and Morrison running over to aisle 13 after hearing

Hensel screaming for Wilhelm to "stop." The video also shows Wilhelm fleeing after

hearing police have been called to the store.

       Officer Huberdeau testified about his contact with Hensel. She refused to tell him

what happened with Wilhelm. He saw the forehead injury. She told him two versions of

what happened—she got in a fight with Wilmore and she fell down. She never told him

she could not remember what happened or that she "blacked out." He saw her broken

finger nail and her forehead injury, consistent with a struggle. She gave Officer

Huberdeau Wilhelm's identification but refused to turn over his wallet. She admitted

improper contact with Wilhelm and wanted to avoid causing trouble for Wilhelm.

       Officer Geiszler took photographs of Hensel's forehead injury. She told him she

loved Wilhelm and wanted to avoid causing trouble for him when Officer Geiszler said it

was not "okay" for Wilhelm to assault her. He offered but she refused domestic violence

assistance. Hensel never told him she could not remember what happened due to

"black out."

       Sergeant Johnson testified about the cut he saw on Wilmore's hand that

occurred when she tried to physically prevent harm to Hensel from the items Wilhelm

threw at Hensel. Sergeant Johnson said Wilmore told him she saw Wilhelm hitting

Hensel on the head with a can of food from the store.

       Officers testified about Wilhelm's arrest. He ran from them when they ordered

him to stop and show his hands. They chased him and found him hiding stomach down

in a heavily vegetated area. He also lied to officers about whether he had contactwith

Hensel.
                                           -25-
70704-3-1/26



         The court also instructed the jury that it could only use Wilhelm's 2011 assault

conviction of Hensel for the limited purpose of assessing Hensel's credibility or resolving

inconsistencies in her testimony, not as propensity evidence. Jurors are presumed to

follow the court's instructions. State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d 567

(2006). Both the State and defense counsel adhered to this instruction in closing

remarks. The State elicited no underlying facts about the 2011 assault conviction at

trial.


         In Gunderson, the court found the admission of two domestic violence

convictions materially affected the outcome at trial and reversed. Here, there is

overwhelming evidence of Wilhelm's guilt on both charges as summarized and

discussed above. By contrast, in Gunderson neither of the two alleged victims17
testified that an assault occurred. Besides the evidence of Gunderson's two prior

convictions, the State presented Bonnie's 911 call and her statement to responding

police. The court held that under these circumstances "it is reasonably probable that

absent the highly prejudicial evidence of Gunderson's past violence the jurywould have

reached a different verdict." Gunderson, 181 Wn.2d at 926.

         We conclude the error, if any, was harmless given the ample evidence of guilt.

         Ineffective Assistance of Counsel

         Wilhelm argues that his attorney was ineffective for proposing a limiting

instruction that restricted evidence of his prior assault conviction to "assessing the




      17 The mother was also an alleged assault victim. But Gunderson was not
charged with assaulting the mother.
                                             -26-
70704-3-1/27



credibility of Leah Hensel and explaining the inconsistencies in her testimony." He

claims the underscored portion constitute a judicial comment on the evidence.

      A defendant's right to effective assistance of counsel is guaranteed by the Sixth

Amendment to the United States Constitution and article I, section 22 of the Washington

Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996) (citing

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

To succeed on a claim for ineffective assistance of counsel, the defendant must first

establish that the trial counsel's performance was deficient. Deficient performance is

performance falling below an objective standard of reasonableness based on

consideration of all the circumstances. State v. McFarland. 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995). Next, the defendant must show that the deficient performance

prejudiced him. Prejudice is shown when there is a reasonable probability that, but for

counsel's errors, the result of the trial would have been different. Hendrickson, 129

Wn.2d at 77-78. The inquiry ends if the defendant fails to establish either prong.

Hendrickson, 129 Wn.2d at 78.

       Deficient Performance

       The trial court gave the jury a limiting instruction proposed by Wilhelm limiting the

jury's consideration of Wilhelm's prior assault conviction. He claims the underscored

phrase below is a judicial comment that tells the jury that Hensel's testimony was

inconsistent.18




      18 Arguably the inclusion of the phrase was a tactical decision. As discussed
above, defense counsel argued that Hensel's testimony was inconsistent and she is not
credible.
                                            -27-
70704-3-1/28



      Certain evidence has been admitted in this case for only a limited
      purpose. This evidence consists] of a prior assault conviction of Mr.
      Wilhelm and may be considered by you only for the purpose of assessing
      the credibility of Leah Hensel and explaining the inconsistencies in her
      testimony. You may not consider it for any other purpose. You may not
      consider it to determine if an assault occurred in this case. Any discussion
      of the evidence during your deliberations must be consistent with this
      limitation.


CP at 19 (emphasis added).

      We review whether a jury instruction constitutes a judicial comment on the

evidence de novo and in the context of the instructions as a whole. State v. Lew, 156

Wn.2d 709, 721, 132 P.3d 1076 (2006). Article IV, section 16 of the Washington

Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor

comment thereon, but shall declare the law." This provision prohibits a judge from

conveying to the jury his or her personal attitudes toward the merits of the case or

instructing the jury that matters offact have been established as a matter of law. State
v. Becker. 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). An appellate court will "review the

instructions in the same manner as a reasonable juror." State v. Hanna, 123 Wn.2d

704,719,871 P.2d 135(1994).

       The State contends that the instruction conveys no judicial opinion on Hensel's

credibility because, viewed as a whole and in the context of other instructions, the

court's instructions left to the jury to decide the credibility of Hensel's testimony.

       Quoted above, the limiting instruction correctly informed the jurythat the assault

conviction may be considered only to assess Hensel's credibility. Jury instruction 1 also
informed the jury that a trial judge is constitutionally prohibited "from making a comment
on the evidence" or "to express by words or conduct, my personal opinion about the

                                             -28-
70704-3-1/29



value of testimony or other evidence." CP at 34. That instruction further instructed the

jury to entirely disregard what may appear to constitute an expression of the court's

personal opinion about the value of the testimony or evidence during the trial or in giving

the instructions. Finally, jury instruction 1 informed the jury of its duty as the sole judges

of the credibility of witnesses:

       You are the sole judges of the credibility of each witness. You are also
       the sole judges of the value or weight to be given to the testimony of each
       witness. In considering a witness's testimony, you may consider these
       things: the opportunity of the witness to observe or know the things he or
       she testified about; the ability of the witness to observe accurately; the
       guality of a witness's memory while testifying; the manner of the witness
       while testifying; any personal interest that the witness might have in the
       outcome or the issues; any bias or prejudice that the witness may have
       shown; the reasonableness of the witness's statements in the context of
       all the other evidence; and any other factors that affect your evaluation or
       belief of a witness or your evaluation of his or her testimony.

CP at 33-34.


       Wilhelm cites to several cases involving instructions that misstate the elements of

the crime in the to convict instruction or misrepresented the burden of proof. None of

those cases control here. They are factually dissimilar to the present case.19

       The challenged phrase in the limiting instruction does not constitute a judicial

comment on the evidence. Wilhelm thus fails to establish his attorney's deficient

performance in proposing the language of the limiting instruction.




       19 See State v. Kyllo. 166 Wn.2d 856, 871, 215 P.3d 177 (2009) (instruction
misstated the level of harm required for self-defense); In re Pers. Restraint of Wilson,
169 Wn. App. 379, 279 P.3d 990 (2012) (instruction misstated the requirements for
accomplice liability); Becker, 132 Wn.2d at 65 (instruction defined building as a school
relieved the State of its burden to prove all the elements of the sentence enhancement
statute).
                                             -29-
70704-3-1/30



       Prejudice

      Wilhelm claims he was prejudiced by the instruction. He argues "if Hensel's

testimony was inconsistent that meant she was not credible. If she was not credible,

then the jury would infer that she was dishonest about her memory and that she was

covering for Wilhelm. The court's comment in the instruction was thus damning

evidence that Wilhelm was guilty of assaulting Hensel." Appellant's Br. at 25.

       Even if we assume deficient performance, Wilhelm's prejudice argument ignores

the overwhelming evidence summarized above of Wilhelm's guilt. To establish

prejudice, Wilhelm must demonstrate a reasonable probability that but for counsel's

errors, the result of the trial would have been different. Hendrickson, 129 Wn.2d at 78.

A mere showing that an error by counsel had some conceivable effect on the outcome

is insufficient. Strickland, 466 U.S. at 693. Wilhelm relies on the rule that a judicial

comment in a jury instruction is presumed prejudicial. State v. Levy, 156 Wn.2d 709,

725, 132 P.3d 1076 (2006). He is not entitled to the benefit of this presumption

because "the State shows that the defendant was not prejudiced or the record

affirmatively shows that no prejudice could have resulted." State v. Hartzell, 156 Wn.

App. 918, 937, 237 P.3d 928 (2010). Hensel gave varying accounts of what

happened—she fell, her best friend Wilmore caused her head injury, and memory loss.

       Overwhelming evidence summarized above establishes that Hensel's testimony

was indeed inconsistent. No reasonable jury could have determined otherwise given

the evidence presented by the State. Even defense counsel attacked Hensel's

credibility by pointing out her inconsistencies in closing argument. For example, he
argued, "they don't even believe anything that's coming out of [Hensel's] mouth." RP
                                             -30-
70704-3-1/31



(July 15, 2013) at 122. He continued, "[W]e all know that Ms. Hensel is somewhat not a

credible witness. .. . [Y]ou can use that assault to assess her credibility. . . . She's not

a very credible witness." RP (July 15, 2013) at 131 (emphasis added).

       Finally, as noted above, jury instruction 1 correctly informed the jury of its duty as

the "sole judges" of credibility and to ignore any words or actions that may be viewed as

a personal opinion by the court on the testimony or other evidence. The jury is

presumed to follow these instructions. Ervin, 158 Wn.2d at 756.

       Accordingly, we are not persuaded that the challenged phrase in the limiting

instruction resulted in any prejudice to Wilhelm. His ineffective assistance claim fails.20

       Bifurcation


       Wilhelm argues the trial court abused its discretion when it denied his motion to

bifurcate the trial and require the State to prove his prior convictions in a separate

proceeding. He claims a bifurcated proceeding ensures against the jury's use of the

conviction as propensity evidence. He asserts the trial court's ruling shows the court's

"misunderstanding of the law and a failure to exercise discretion." Appellant's Br. at 26-

27.




      20 In State v. Brush, No. 90479-1 slip op. at 1 (Wash. July 2, 2015) our Supreme
Court held that the jury instruction defining "prolonged period of time" constitutes an
improper comment because it essentially told the jury that abuse occurring for more
than two weeks met this definition. The court analogized this instruction to the
instruction in State v. Lew, 156 Wn.2d 709, 721-22, 132 P.3d 1076 (2006) where the
instruction there referred to a crowbar as an example of a deadly weapon. In Brush, the
court also held the improper comment was prejudicial because the State failed to rebut
the presumption of prejudice by showing no prejudice could have resulted. The court
affirmed reversal of Brush's exceptional sentence.
       For the reasons discussed above, Brush does not apply here.
                                             -31-
70704-3-1/32



      The court explained its rationale:

      [T]he case law is against that position at this point in time, so I will not
      bifurcate. I think the state is allowed to admit the priors in its case-in-chief
      because they are an alleged element of the crime. I will consider a limiting
      instruction if the defense proposes one.

RP (July 9, 2013) at 49.

      A trial court's decision on bifurcation is generally reviewed for an abuse of

discretion. State v. Roswell. 165 Wn.2d 186, 192, 196 P.3d 705 (2008). A court

abuses its discretion only when its decision is manifestly unreasonable or based on

untenable grounds. Where a prior conviction raises the base crime to a felony, the

existence of those prior convictions is an element of the crime and not an aggravator.

Thus, a defendant has no right to bifurcate the proceedings and waive jury trial on the

element of the priors alone. Roswell. 165 Wn.2d at 197 (holding that the defendant had

no right to keep his prior convictions for violation of a court order from the jury by

presenting that evidence at a separate bench trial). Felony violation of a no-contact

order requires proving at least two prior violations of no-contact orders. The prior

violations are therefore elements of the crime of felony violation of a no-contact order.

       Roswell controls. The trial court here properly denied the bifurcation motion.

"Courts have long held that when a prior conviction is an element of the crime charged,

it is not error to allow the jury to hear evidence on that issue." Roswell. 165 Wn.2d at

197 (citing Pettus v. Cranor, 41 Wn.2d 567, 568, 250 P.2d 542 (1952)).




                                             -32-
70704-3-1/33



         Prosecutorial Misconduct in Closing

         Wilhelm claims the prosecutor's rebuttal closing argument about the lack of

evidence that the no-contact orders had been revoked improperly shifted the burden of

proof.

                [The State]: He had a no contact order—two no contact orders.
         Now, you're going to be able to see those back in the jury room, but these
         have been proven beyond a reasonable doubt because they're certified
         true and correct copies of those actual two no contact orders. You'll also
         get the certified copies of the Department of Licensing photos of both
         Leah Hensel and Damian Wilhelm backing up their identities. Obviously
         you saw them here in court. They acknowledged who they were. But
         that's just an extra evidence to show you who this order is talking about.
         And you've heard Detective Horn's testimony that those orders were in
         place at the time of this violation on March 11, 2013. The orders you can
         see themselves were signed in 2012. They don't expire until 2014. They
         were in existence.
                Now, the next element that we have to prove is that he knew they
         existed. Of course he knew that they existed. He knew that they existed
         because he signed each of them in open court. And you'll be able to see
         it once you get back in[to the] jury room. It says, "Done in open court in
         the presence of the defendant" and he signs it. There is no evidence that
         you've heard in this trial that anyone ever tried to change or lift those
         orders. The information says that they don't expire until next year. t21]
                [Defense Attorney]: I'm going to object to that, Your Honor. That's
         shifting the burden.
                THE COURT: Overruled.

RP (July 15, 2013) at 110-11 (emphasis added).

         To prevail on a claim of prosecutorial misconduct, a defendant is required to

show that in the context of the record and all of the circumstances of the trial, the

prosecutor's conduct was both improper and prejudicial. State v. Thorgerson. 172
Wn.2d 438, 442, 258 P.3d 43 (2011). To establish prejudice the defendant must prove

that there is a substantial likelihood the instances of misconduct affected the jury's


         21 Wilhelm quotes only the final two sentences.
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verdict. Thorgerson. 172 Wn.2d at 442-43. It is not misconduct for a prosecutor to

argue that the evidence does not support the defense theory. State v. Brown, 132

Wn.2d 529, 566, 940 P.2d 546 (1997). A prosecutor is entitled to make a fair response

to the arguments of defense counsel. State v. Russell. 125 Wn.2d 24, 87, 882 P.2d 747

(1994).

      At trial, defense counsel elicited testimony from the detective about the

validity of the orders and Wilhelm's knowledge.

                [Defense Counsel]: Okay. So—so it is, I won't say often, but
                sometimes victims come into court and ask for the no contact order
                to be recalled.
                [Witness]: That is correct.
                [Defense Counsel]: And sometimes those recall orders take some
                time to get into the computer system so it shows up on an officer's
                computer; is that correct?
                [Witness]: That is correct, but we have to go off of what we have at
                that moment.
                   [Defense Counsel]: Yeah. Fair enough.
                   So it is possible then that Mr. Wilhelm—I mean, let me just back up.
          You couldn't confirm as part of this investigation if [Wilhelm] knew it was
          still active and in place because sometimes these orders get recalled.
          Fair enough?
                 [Witness]: I'm sorry. I can't speak to his mental state if he knew
          the order was valid or not.

RP (July 15, 2013) at 61-62.

          In closing, defense counsel argued the State had failed to prove that Wilhelm

knew about the issuance of valid no-contact orders.

          The thing the state need[s] to really prove, and I don't think they proved
          beyond a reasonable doubt, is that Mr. Wilhelm knew that the violation of
          the no contact order was in place. That's hard to prove someone's
          mindset without strong compelling evidence.

RP (July 15, 2013) at 134.


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       The record leaves no doubt that it was defense counsel who first raised the issue

 of the no-contact orders' validity and Wilhelm's knowledge both at trial and in closing

 remarks. Under these circumstances, the State properly pointed out to the jury in

 rebuttal the absence of any evidence to support Wilhelm's claim he lacked knowledge

 about the no-contact orders. The prosecutor's challenged rebuttal remarks constitute

 neither misconduct nor prejudice. Further, jury instruction 2 properly informed the jury

 that the State "has the burden of proving each element of each crime beyond a

 reasonable doubt. The defendant has no burden of proving that a reasonable doubt

 exists as to these elements." CP at 36. The jury is presumed to follow the court's

 instructions. Ervin, 158 Wn.2d at 756.

                                      CONCLUSION



       For the reasons discussed above, we affirm Wilhelm's judgment and sentence.




                                                               Hy

 WE CONCUR:




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