                                                                                               FILED
                                                                                                    y
                                                                                       NMI
                                                                                         I      s APPEAL
                                                                                            DIVISION 11

                                                                                     201f1 JUL -- 1
    IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                   M ON/ 48
                                                                                                         8:

                                                                                      STATE OF WASHINGTON
                                                DIVISION II
                                                                                      BY.
                                                                                              DE DUTY
STATE OF WASHINGTON,                                                            No. 44099 -7 -II


                                    Respondent,                          UNPUBLISHED OPINION


       v.



EDWIN MICHAEL HILL,


                                    Appellant.


        BJORGEN, A.C. J. —      Following a bench trial, the trial court found Edwin Michael Hill

guilty of failure to register as a sex offender. Hill appeals his conviction, asserting that the trial

court violated his right to effective assistance of counsel by denying his counsel' s motion to

withdraw from representation based upon a conflict of interest. Because Hill cannot demonstrate


that his counsel had an actual conflict of interest that adversely affected counsel' s trial

performance, we affirm.



                                                         FACTS


        On February 9, 2012, the State charged Hill with failure to register as a sex offender.

Before trial, Hill' s defense counsel filed a motion to withdraw, asserting that he had an actual

conflict of interest because he was also representing Andrew Alston, one of the State' s witnesses,

on two unrelated criminal matters. Specifically, Hill' s defense counsel told the trial court:

                The     situation   is, there is   an actual conflict.     The concern, though, I can' t
        speak to the substance in part because of client confidence and also because
        without   the   testimony, it' s kind      of   hard to say.   There is the strong potential that
        during examination of Mr. Alston, somebody I represent, information I have in
        my representation of him could be beneficial to Mr. Hill and detrimental to Mr.
        Alston, putting me in a direct conflict, having to withdraw from both parties.

Report of Proceedings ( RP) at 2. The State opposed defense counsel' s withdrawal motion,


proposing that the trial    court appoint a second         attorney for Hill   who could cross examine   Alston.
No. 44099 -7 -II



The trial court agreed with the State and appointed Hill a second attorney to cross examine

Alston. At the conclusion of the bench trial, the trial court found Hill guilty of failure to register

as a sex offender and later entered the following unchallenged findings of fact and conclusions of

law:


                                                Findings of Fact
        1.On May 31, 2011, based upon a previous conviction for a sex offense, the
       Defendant registered with the Cowlitz County Sheriff' s Office ( CCSO) his home
        address as      1316 11th Ave Apt # 1, Longview Washington. The apartment is part
        of    the Hudson Hotel Annex.          The Defendant informed CCSO that he would be
        living with Andrew Alston.
        2.     The Hudson Hotel Annex is more akin to a hotel rather than a traditional
        apartment complex.

        3.     Apt #   1 is a studio apartment that is furnished with a bunk bed and a couch.
        Mr. Alston       was   the only   resident of   Apt # 1 that had a rental agreement with the
        Hudson Hotel. The Defendant did            not   have     a   key   to Apt #1.
        4. On June 22, 2011, Longview Police Department Sergeant John Reeves went to
        1316 1 lth Ave Apt # 1 to verify the Defendant' s address. Sgt. Reeves was unable
        to make contact with the Defendant.      Sgt. Reeves contacted Mr. Alston, who
        indicated that the Defendant was out looking for employment.
        5.     On June 28, 2011, Longview Police Department Investigator Olga Lozano
        went    1316 11th Ave Apt # 1 to verify the Defendant' s address.
                 to                                                         Inspector
        Lozano was unable to make contact with the Defendant or Mr. Alston. Inspector
        Lozano left a business card at the Defendant' s residence that instructed the
        Defendant to call her. Inspector Lozano was not contacted by the Defendant.
        6. On July 12, 2011, Inspector Lozano went to 1316 11th Ave Apt # 1 to verify
        the Defendant'      s address. Inspector Lozano was unable to make contact with the
        Defendant.        Inspector Lozano made contact with Mr. Alston, who indicated the
        Defendant was out looking for employment.
        7.     On August 15, 2011, Inspector Lozano made contact with Juanita Stewart, an
        employee of    the Hudson Hotel. Ms. Stewart informed inspector Lozano that the

        Defendant had not entered into any rental agreements with the Hudson Hotel
        Annex.
        8. On August 26, 2011, Mr. Alston               and   the Defendant      moved   from Apt # 1 to Apt
             4. The Defendant did not inform CCSO of his new residence address.
        9.     Apt # 4 is a studio apartment that is furnished with a single bed and a couch.
        Mr. Alston slept on the bed. The Defendant slept on the couch, which contained a
        pull -out bed. The Defendant did not have a key to Apt #4.
        10. On October 11, 2011, Mr. Alston vacated Apt #4 and moved to an address in
        Kelso, Washington. The Defendant did not move to Kelso with Mr. Alston. The
        Defendant did not enter into a rental agreement with the Hudson Hotel.

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No. 44099 -7 -II



             11.     On December 29, 2011, Inspector Lozano requested a bench warrant be
             issued for the Defendant'          s arrest.   In April 2012, the Defendant was arrested in
             Tigard, Oregon        on   the bench   warrant.   The Defendant was released from custody
             in June, 2012. Upon his release, the Defendant registered with CCSO an address
             in Tigard, Oregon.


                                                        Conclusions of Law
             1.    The Defendant was required to register as a sex offender.
             2.    Between May 31, 2011 and December 29, 2011, the Defendant was registered
             as a sex offender with the Cowlitz County Sheriff' s Office.
             3.    The Defendant         resided   at    1316 11th Ave Apt # 1,    Longview, Washington,
             which is the address the Defendant registered with the Cowlitz County Sheriff' s
             Office.
             4.    To   establish a " residence,"        a person merely needs to show intent to make it
             their home.     It is not an unreasonable circumstance that the Defendant was not at
             his residence for a few weeks while looking for employment.
             5.    On October 11, 2011, when Mr. Alston vacated Apt #4, the Defendant could
             not   have   continued     to   reside at   the Hudson Hotel Annex.     The Defendant had not
             entered into a rental agreement nor did he have a key to Apt #4.
             6. The Defendant failed to notify the Cowlitz County Sheriff' s Office within
             three business days after moving from 1316 1 lth Ave, Longview, Washington.
             7. The Defendant is guilty of failing to register as a sex offender.

Clerk'   s   Papers ( CP)     at   23 -25.   Hill timely appeals his conviction.

                                                            ANALYSIS


             Hill contends that the trial court' s denial of his counsel' s motion to withdraw from

representation denied his constitutional right to effective assistance of counsel. Because Hill

cannot show on this record that his counsel had an actual conflict of interest that adversely

affected his counsel' s performance, we disagree and affirm Hill' s conviction.


             We review ineffective assistance of counsel claims de novo. State v. White, 80 Wn. App.

406, 410, 907 P. 2d 310 ( 1995).               The Sixth Amendment to the United States Constitution and


article I, section 22 of the Washington State Constitution provide criminal defendants with the


right   to effective assistance of           counsel.    U. S. CONST.   amend   VI; WASH. CONST.   art   I, § 22; State


v.   Kolesnik, 146 Wn.         App.     790, 800, 192 P. 3d 937 ( 2008). This right includes the right to


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No. 44099 -7 -II



assistance of an attorney free from conflicts of interest in the case. State v. Dhaliwal, 150 Wn.2d

559, 566, 79 P. 3d 432 ( 2003) (        citing Woody. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L.

Ed. 2d 220 ( 1981)).


         To prevail on his ineffective assistance claim, Hill has the burden to show that his


defense counsel had an actual conflict of interest adversely affecting counsel' s performance.

Dhaliwal, 150 Wn.2d           at   573. An    actual conflict of     interest   means "'   a conflict that affected



counsel' s performance —           to a mere
                        as opposed .                           theoretical   division   of   loyalties. "' Dhaliwal, 150


Wn.2d    tat


               570 ( quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291

 2002)).       The mere potential for a conflict of interest affecting counsel' s performance is

insufficient to warrant reversal of a defendant' s conviction. Dhaliwal, 150 Wn.2d at 573.

   U] ntil a defendant shows that his counsel actively represented conflicting interests, he has not

established      the   constitutional predicate      for his   claim of   ineffective   assistance. "'   Dhaliwal, 150


Wn.2d at 571 n. 8 ( quoting Cuyler v. Sullivan, 446 U. S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d

333 ( 1980)).


         Hill contends that his defense counsel demonstrated an actual conflict of interest through

his   representation of       Alston   on   two   unrelated criminal matters.        But a defense counsel' s


representation of a witness adverse to the defendant, alone, is insufficient to demonstrate an


actual conflict of interest warranting withdrawal from representation. For example, in State v.

Ramos, 83 Wn.          App.   622, 632, 922 P. 2d 193 ( 1996), Division One of our court held that the trial


court erred in finding that defense counsel had an actual conflict of interest necessitating

counsel' s withdrawal from representation. In so holding, the Ramos court reasoned that the

defendant had failed to present any evidence that defense counsel' s cross examination of a


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No. 44099 -7 -II



State' s witness would involve an inquiry into information gained by defense counsel through its

prior representation of           the   witness.      83 Wn.    App.      at   632.   Similarly in State v. Hunsaker, 74 Wn.

App.   38, 48, 873 P. 2d 540 ( 1994),              Division One of our court reversed a trial court' s finding of an

actual conflict of interest, reasoning that the defendant had failed to present any evidence that

cross examination of a State' s witness would involve the use of information acquired during

counsel' s prior representation of the witness. See also State v. Anderson, 42 Wn. App. 659, 713

P. 2d 145 ( 1986) (       no actual conflict of interest existed where defense counsel had previously

represented a State' s witness).


          As in Ramos and Hunsaker, Hill did not present any evidence that his defense counsel' s

cross examination of Alston would involve the use of information gained by way of counsel' s

representation of Alston. Here, Hill' s defense counsel submitted a motion to withdraw that


stated:



                     2.    This office has a conflict regarding the above -named Defendant, and I
          make a request        to withdraw as Attorney of Record. During review of the reports
           in   preparation        for trial,   counsel       noticed      that the [ State'     s]   named witness is a
           current client in two matters.
                     3.    Due to the nature of the charge in the present case and the scope of the
           representation         of    the [ State'   s]    named witness counsel believes that an actual
           conflict exists requiring withdrawal in the present case.

CP   at   18. Then,       at a   hearing   on   the   motion    to   withdraw,        defense   counsel stated, "   There is the


strong potential that during examination of Mr. Alston, somebody I represent, information I have

in my representation of him could be beneficial to Mr. Hill and detrimental to Mr. Alston,

putting    me   in   a   direct   conflict,   having    to   withdraw          from both   parties."   RP at 2 ( emphasis added).


At best, these statements demonstrate a possible conflict of interest that could have arisen

through defense counsel' s cross examination of Alston, but are insufficient to show an actual



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No. 44099 -7 -II



conflict of interest precluding counsel' s effective representation of Hill.1 Dhaliwal, 150 Wn.2d
at   573.   Moreover, the trial court eliminated this potential conflict of interest by appointing a

second attorney to cross examine Alston.2 Our Supreme Court has held that even where a

defendant has demonstrated the possibility that his attorney was representing conflicting

interests, the defendant fails to establish an actual conflict if he cannot show that a conflict of


interest adversely       affected counsel' s   trial   performance.    Dhaliwal, 150 Wn.2d          at   573. Because


Hill cannot make this requisite showing, his ineffective assistance of counsel claim fails.




1 This case is thus distinguishable from State v. MacDonald, 122 Wn. App. 804, 95 P. 3d 1248
 2004). In MacDonald, we reversed the defendant' s convictions based on the State' s failure to
disclose    material evidence     to the defense       and on   the State'   s   improper closing   argument.   122
Wn.     App.   at   809 -12.
                       We also determined that the trial court had properly disqualified the
defendant' s attorney based on a conflict of interest created by the attorney' s representation of the
victim' s mother in a marital dissolution case. MacDonald, 122 Wn. App. at 813 -14. In
upholding the trial court' s disqualification of counsel, we noted that defense counsel had
received confidential information about the victim that was relevant to the victim' s credibility
and her accusations against the defendant, and that the victim' s testimony was the sole evidence
of the defendant' s guilt. MacDonald, 122 Wn. App. at 813 -14. Unlike in MacDonald, here
defense counsel showed only a potential conflict of interest based on counsel' s representation of
a State' s witness, and the record contains no evidence that defense counsel received confidential
information about the State' s witness that was relevant to the witness' s credibility or to the
defendant' s guilt.

2
     Hill argues that the trial court' s appointment of a second attorney to cross -examine Alston was
insufficient to remedy any potential conflicts of interest because Hill' s second attorney did not
participate in closing arguments. This argument fails to acknowledge that an attorney' s closing
argument must be based on facts in evidence and the reasonable inferences that could be drawn
from the facts in evidence. See, e. g., State v. Boehning, 127 Wn. App. 511, 519, 111 P. 3d 899
 2005). As Hill' s primary defense counsel was present during secondary counsel' s cross -
examination of Alston, there was nothing preventing Hill' s primary counsel from " effectively
using the fruits of [Alston' s] cross -examination" during closing argument. Br. of Appellant at
14.
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No. 44099 -7 -II



Accordingly, we affirm.

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

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


2. 06. 040, it is so ordered.




We concur:




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