                                                                                                                        i•' ) i_ ED
                                                                                                           001JR I, 0i• APPE AILS
                                                                                                                      iV1.1 , 4 it
                                                                                                                      Or

                                                                                                         2015' sEP - 9         AM
                                                                                                                                II      5
                                                                                                                                        :     `
                                                                                                               rte,


                                                                                                                           dAS11i, - GTO111
                                                                                                               y
                                                                                                         4"r                     a.
                                                                                                                       DERIJT




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

 STATE OF WASHINGTON,                                                                   No. 46015 -7 -II


                                          Respondent,


             V.



 HEATHER DAWN ROARK,                                                            UNPUBLISHED OPINION


                                          Appellant.




         LEE, J. —        Heather Dawn Roark appeals her convictions on three counts of delivering

methamphetamine, one count of possessing methamphetamine with intent to deliver, and the

resulting     sentences.        Roark   argues    that ( 1)   the trial court erred by failing to apply the proper

analysis under ER 404( b). before admitting evidence that third parties threatened and assaulted the

confidential       informant     who    testified   against   her; (   2) the trial court erred in admitting irrelevant

evidence; (       3) she received ineffective assistance of counsel when her attorney failed to request a

limiting instruction concerning this evidence; and (4) the trial court erred in running her four school

zone sentence enhancements consecutively to each other.

         We hold that ( 1) because Roark did not raise any objection under ER 404( b) to the evidence

at   issue   during    trial,   her. ER   404( b)   challenge     is   waived; (   2) the trial court did not abuse its


discretion in admitting           evidence       that third    parties    threatened   and   assaulted   the       confidential
No. 46015 -7 -II



informant as relevant to the confidential informant' s credibility and Roark' s consciousness of guilt

under   ER 402; (    3) Roark' s related claim of ineffective assistance of counsel fails because any

limiting instruction would have emphasized the threat and assault evidence and would not have

changed the tr'ial' s outcome; and ( 4) because of the Washington Supreme Court' s recent decision

in State   v.   Conover, _    P. 3d ,   2015 WL 4760487 ( Wash.     Aug.   13, 2015), the trial court erred


in imposing Roark' s multiple school zone sentence enhancements consecutive to each other.

Accordingly, we affirm Roark' s convictions but remand for resentencing with instructions to the

trial court to impose Roark' s multiple school zone sentence enhancements consecutive to the base


sentences for the drug and bail jumping convictions, but concurrent to each other.

                                                FACTS .


           During May 2011, Bremerton detectives investigated Roark and Adam Carter for possible

drug   violations.    Paid informant Robert White made three controlled buys of methamphetamine


from Roark and one from Carter at their residence in late May.

           After the four buys occurred, the police obtained a warrant to search the residence. While


executing the search warrant, officers found a baggie of methamphetamine dissolving in the toilet

and     another    baggie    of   methamphetamine   in   the   bathroom    garbage.    They also found

methamphetamine, baggies, and methamphetamine pipes in the bedroom. In addition, the search


revealed a digital scale and buy money from one of the controlled buys.




                                                     2
No. 46015 -7 -II




        After waiving her Miranda' rights, Roark told the police that she and Carter had been

selling methamphetamine from the house for a few months. She admitted that when she heard the

officers at the door, she tried to dispose of the drug.

        The State charged Roark with three counts of delivering methamphetamine, one count of

possessing methamphetamine with intent to deliver, and three counts of bail jumping after she
                                                             2
failed to   appear   at    scheduled     court   hearings.           The State also alleged that each drug offense

occurred within 1, 000 feet of school grounds or a school bus stop.

        When Roark' s trial began on December 18, 2013, White testified about the four buys.

White explained that he engaged in the buys to work off his girlfriend' s charges and to make


money. After his cross- examination, the trial recessed for the day.

        Before the jury returned on December 19, the prosecutor notified the trial court that he had

some   information to discuss.           The   prosecutor    described that information        as   follows:   White had


appeared    in   court   the   day   before, December 18,        with a   black   eye.   3 RP 319. White received his


black eye a few days earlier after an unknown assailant approached him, asked his name, and


struck him in the face. After White testified on December 18, Roark made a phone call from jail


in which she asked Steve Irwin to get as many people as possible in court the next morning because

 her ` rat"'   would     be testifying    again.   3 Verbatim Report          of   Proceedings ( VRP)     at   320.   In an




1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).


2 Roark does not challenge her bail jumping convictions, so we do not set forth the testimony that
supports them.




                                                                 3
No. 46015 -7 -II



earlier call on December 14, Roark had stated that White and his girlfriend were responsible for


her being in custody. Finally, White had heard that someone had placed a bounty on his head.

         The prosecutor argued that Roark' s jail calls linked all of this information to her and that


this evidence was admissible to show her consciousness of guilt. When the defense asked for an


offer of proof and a continuance, the prosecutor responded that White might not be willing to

return to court.


         The trial court ruled that because White' s credibility had been questioned during cross-

examination, the State was entitled to explore his awareness of any threats or physical violence

related to his testimony. When the defense again sought an offer of proof, the trial court granted

that request.



         During the offer of proof, White testified that several months earlier, he had received

threatening     e- mails on   Facebook from Ryan Higgins, Roark' s former boyfriend.               The e- mails


stated   that White   was a " snitch."   3 VRP    at   361.      White added that a friend had told him the


previous week that Higgins had put a bounty on his head and wanted to buy photographs of White

being beaten up. White stated that the same night, someone had punched him in the face and fled.

White    added   that he thought Higgins was     trying     to   help   Roark. White also testified that he was


concerned about seeing an acquaintance in the courtroom that day who had no reason to be in

court.3 White ended the offer of proof by stating that he was afraid to testify because Roark was

known for seeking retribution.




3 The trial court noted for the record that the man about whom White expressed concern was
sitting in court with Steve Irwin, the recipient of Roark' s December 18 phone call.


                                                        M
No. 46015 -7 -II




         The State argued that the evidence regarding the threats, assault, and Roark' s phone calls

was admissible     to   show   that White   was nervous about   testifying. When the defense argued that

the connection between Roark and the information presented was too speculative, the prosecutor

responded that the evidence was admissible to rebut defense efforts to impeach White.

         The trial court referred to ER 402 in ruling that the evidence regarding the assault and

Higgins' emailed threats was relevant to White' s ability to testify and Roark' s consciousness of

guilt.   The court added that the evidence regarding the bounty was admissible to show White' s

state of mind.     White also could testify that the presence of his acquaintance in court with Irwin

contributed to his fear. White testified on redirect accordingly.

         When trial resumed the following Monday, the State sought permission to play excerpts

from Roark' s December 14 and 18 phone calls for the jury. The defense objected and asserted that

the State had misinterpreted the calls and that they were irrelevant to any suggestion that Roark

had anything to do with White getting hit and being fearful. The defense further argued that even

if the calls were relevant, they were too prejudicial to admit.

         After listening to the calls, the trial court ruled that part of the first call, in which Roark

stated that White did the buys for his girlfriend, was probative of Roark' s consciousness of guilt.


The court further ruled that Roark' s statement in the second call that " my rat is going to testify"

was relevant to White' s state of mind while testifying as well as Roark' s consciousness of guilt.

The court added that the calls, consisting of Roark' s own words, were not unfairly prejudicial. The

trial court granted defense counsel' s request to have the calls played for the jury in their entirety.




                                                       5
No. 46015 -7 -II




        After the jury found Roark guilty as charged, the trial court granted her request for a DOSA
               4
sentence.            Although Roark argued that her four school zone enhancements should run


concurrently to each other, the trial court imposed them consecutively. The court imposed a total

of 186 months on the drug charges, with 93 months to be served in prison and 93 months in

treatment.         The 186 months included 96 months for the four consecutive 24 -month school zone


enhancements.                 The court ran the 60 -month sentences for the bail jumping convictions

concurrently to           each   other      and   concurrently to the DOSA         sentence.   Roark now appeals her


convictions and sentence.



                                                           ANALYSIS


A.      ADMISSION OF THREATS AND ASSAULT AGAINST WHITE


        Roark argues that the trial court erred in admitting the evidence of Higgins' threats against

White, as well as the assault upon White. We disagree.

          1.       ER 404( b)


        Roark argues primarily that the trial court erred because it admitted White' s testimony

without    addressing the             requirements     for admissibility   under   ER 404( b)..   Roark made no such


objection at trial.



          A party may only assign error on appeal based on the specific ground of the evidentiary

objection at         trial.   State   v.   Guloy,   104 Wn. 2d 412, 422, 705 P. 2d 1182. ( 1985), cert. denied, 475


U. S. 1020 ( 1986); State             v.   Collins, 45 Wn.   App.     541, 546, 726 P. 2d 491 ( 1986), review denied,


107 Wn.2d 1028 ( 1987).                    An objection to the admission of evidence based on relevance fails to




4 DOSA is an abbreviation for a Drug Offender Sentencing Alternative sentence imposed under
RCW 9. 94A.660.


                                                                 no
No. 46015 -7 -II



preserve the issue for appellate review based on ER 404(b) grounds.5 State v. Jordan, 39 Wn.

App.   530, 539, 694 P. 2d 47 ( 1985),         review   denied, 106 Wn.2d 1011 ( 1986), cert. denied, 475' U.S.


1039 ( 1987).     Here, Roark objected to White' s testimony based only on relevance. Consequently,

we hold that she did not preserve the ER 404( b) issue for appeal.

            2. Relevance


            Roark' s attorney objected to admission of the information regarding the threats from

Higgins and the assault because their connection with Roark was too speculative. We review the


trial court' s rejection of this argument for abuse of discretion. State v. Bourgeois, 133 Wn.2d 389,


399, 945 P. 2d 1120 ( 1997).


            Evidence is relevant if it has a tendency to prove or disprove a fact that is of some

consequence in the context of the other facts and the applicable substantive law. ER 401; 5D KARL


B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE, Rule

401,   at   125 ( 2014- 15   ed.).   All relevant evidence is admissible, but it may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. ER 402, 403.

            Evidence that a defendant threatened                   a witness   is relevant because    it reveals   a


consciousness of guilt.      State   v.   Moran, 119 Wn.       App.   197, 218, 81 P. 3d 122 ( 2003), review denied,


151 Wn.2d 1032 ( 2004); 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND


PRACTICE § 402.4,      at    39 ( 5th   ed.   Supp.   2015).   Such evidence is admissible for this. substantive




5 Appellate counsel also refers to ER 602, 801, and 802 in arguing that the trial court committed
evidentiary error. Here again, the failure to raise these objections below waives these claims of
error on appeal.



                                                               h
No. 46015 -7 -II




purpose and to evaluate a witness' s credibility if there is a connection between the defendant and

the reluctance of any witness to testify. Bourgeois, 133 Wn.2d at 400.

          Here, the evidence showed that Higgins, Roark' s former boyfriend, made online threats to


White after the charges resulting from White' s controlled buys were filed. In addition, there was

evidence that someone told White that Higgins had placed a bounty on his head, that Roark

complained in a phone call that White was responsible for the buys, and that on the evening of the

same   day     as   the "   bounty"   remark, someone assaulted         White. In a second phone call made a few


days later, Roark asked Steve Irwin to " join the forces" in court the following day because " my

rat" would be testifying. 4 VRP at 527- 28. A man White knew from the drug community sat with

Irwin in court the next day.

          On appeal, Roark assigns error only to the admission of Higgins' threats and the assault

against   White.        When viewed in the context of the other evidence described above, there is a


sufficient connection between Roark and the challenged evidence to render that evidence relevant


and admissible to show White' s reluctance to testify, as well as Roark' s consciousness of guilt.

The fact that the State contended during closing argument that the evidence was relevant only to

the issue of White' s motivations while testifying is irrelevant to our assessment of the trial court' s

ruling.


          In   addition      to   being   relevant,   this   evidence was not   unfairly   prejudicial.   See Carson v.


Fine, 123 Wn.2d 206, 223, 867 P. 2d 610 ( 1994) ( unfair                   prejudice is caused by evidence likely to

arouse    an emotional response rather                than   a rational response   among jurors).   White' s testimony

regarding Higgins' threats and the assault was unlikely to elicit an emotional rather than rational




                                                                  8
No. 46015 -7 -II



response      from the    jury. Thus,   the   evidence was not    unfairly     prejudicial.   We conclude that the


trial court did not abuse its discretion in admitting evidence ofthe threats and assault against White.

B.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Roark argues next that she received ineffective assistance of counsel when her attorney

failed to request a limiting instruction concerning the jury' s use of the evidence concerning

Higgins' threats and the unknown assailant' s assault. We disagree.


           This issue     presents a mixed question of      law   and   fact that     we review   de   novo.   State v.


Sutherby,      165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To demonstrate that she received ineffective


assistance of counsel, a defendant must show that her counsel' s performance was deficient and

that the     deficiency   was prejudicial.     State v. Grier, 171 Wn.2d 17, 32- 33, 246 P. 3d 1260 ( 2011);


State   v.   Barragan, 102 Wn.         App.   754, 762, 9 P. 3d 942 ( 2000).           Counsel' s performance was


deficient if it fell below an objective standard of reasonableness. State v. McFarland, 127 Wn.2d


322, 334- 35, 899 P.2d 1251 ( 1995).          Matters that go to trial strategy or tactics do not show deficient

performance.       Grier, 171 Wn.2d at 33; State v. Rainey, 167 Wn. App. 129, 135- 36, 28 P. 3d 10

 2001),      review,   denied, 145 Wn.2d 1028 ( 2002).         We strongly presume that counsel' s conduct

constituted sound         trial strategy.   Barragan, 102 Wn.     App.    at   762.    Prejudice exists if there is a


reasonable probability that, the result of the proceeding would have differed had the deficient

performance not occurred. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).


             Here, a limiting instruction would have highlighted the evidence concerning Higgins'

threats and the assault. Therefore, we can presume that counsel' s decision not to request a limiting

instruction was legitimate trial strategy because such an instruction would have reemphasized

damaging evidence. See State v. Donald, 68 Wn. App. 543, 551, 844 P. 2d 447 ( finding failure to



                                                           W
No. 46015 -7 -II



request   limiting   instruction   was   tactical),   review   denied, 121 Wn.2d 1024 ( 1993).          Moreover, we


see little likelihood that the trial' s outcome would have differed had the trial court offered the jury

a   limiting instruction. Thus, even if counsel' s performance was deficient; Roark fails to show

prejudice.    We reject Roark' s claim that she received ineffective assistance of counsel when her


attorney failed to request a limiting instruction concerning the threats and the assault against White.

C.        SCHOOL ZONE ENHANCEMENTS


          Finally, .Roark argues that the trial court erred when it ran her four school zone

enhancements       consecutively instead        of    concurrently to          each   other.    Roark argues that the


ambiguity in the       applicable    statute,    RCW 9. 94A.533( 6),             requires the    enhancements to run



concurrently. The Supreme Court' s recent decision in Conover, 2015 WL 4760487, controls.

          RCW 9. 94A.533 addresses sentence adjustments, and subsection ( 6) provides as follows:


                 An additional twenty-four months shall be added to the standard sentence
          range for any ranked offense involving a violation of chapter 69. 50 RCW if the
          offense was also a violation of        RCW 69. 50. 435          or   9. 94A. 827. All enhancements
          under this subsection shall run consecutively to all other sentencing provisions, for
          all offenses sentenced under this chapter. E6

          The first sentence of RCW 9. 94A.533( 6) is not at issue. There is no question that Roark

committed ranked offenses under chapter 69. 50 RCW in violation of RCW 69. 50. 435, which


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

school grounds.       RCW 69. 50. 401( 1), .    435( 1)(   c), (   d).   At issue here is the meaning of the second

sentence   in RCW 9. 94A. 533( 6): " All enhancements under this subsection shall run consecutively


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




6 We cite the current version of RCW 9. 94A.533( 6) for clarity. State v. Swiger, 159 Wn.2d 224,
227 n.3, 149 P. 3d 372 ( 2006).



                                                             10
No. 46015 -7 -II



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

RCW 9. 94A. 533( 6) with the contrasting language in the statutory provisions addressing other

sentence      enhancements.          2015    WL   4760487, *             3(     citing    RCW   9. 94A. 533( 3)(   e) (   firearm


enhancements shall run consecutively to all other sentencing provisions, including other firearm

or   deadly   weapon enhancements) and          RCW 9. 94A. 533( 4)( e). ( deadly             weapon enhancements shall

run consecutively to all other sentencing provisions, including other deadly weapon or firearm

enhancements)).        The Conover court concluded that the legislature' s choice of different language


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

be imposed consecutively. 2015 WL 4760487, *                      4. 7 Therefore, the Conover court held that " RCW


9. 94A.533( 6) requires the trial court to run Conover' s bus stop enhancements consecutively to the

base    sentences    for   each [ convicted offense],       but   not   consecutively to      each   other." Id. at * 7.


          We   are   constrained     to follow Conover.                Therefore, we affirm Roark' s convictions but


remand for resentencing with instructions to the trial court to impose Roark"s multiple school zone



     In 2006, legislature      added   the   second   sentence          to RCW 9. 94A.533(       6).    Conover, 2015 WL
4760487, * 6. The Conover court held that the second sentence still does not require trial courts to
run multiple school zone enhancements consecutively, but we note that the legislative history
concerning the 2006 amendment suggests                  a   different         result.    See FINAL B. REP. ON ENGROSSED
SECOND SUBSTITUTE S. B. 6239, at 4, 59th      Leg., Reg. Sess. ( Wash. 2006) ( describing sentencing
modification                    s] entence enhancements for ranked drug offenses are to be served
                 providing that "[
consecutively"); H.B. REP. ON ENGROSSED SECOND SUBSTITUTE S. B. 6239, at 7, 12, 59th Leg.,
Reg. Sess. ( Wash. 2006) ( stating that statutory language was clarified to specify that all sentence
enhancements relating to violations of the Uniform Controlled Substances Act in drug-free zones
are to run consecutively to all other sentencing provisions for all sentences under the Sentencing
Reform Act); HOUSE CRIMINAL JUSTICE &                         CORRECTIONS COMM., H.B. BILL ANALYSIS, ON
ENGROSSED SECOND SUBSTITUTE S. B. 6239,                 Leg., Reg. Sess. ( Wash. 2006) ( same);
                                                            at    6, 15, 59th
S. B. REP. ON ENGROSSED SECOND SUBSTITUTE S. B. 6239, at 5, 59th Leg., Reg. Sess., at 5 ( Wash.
2006) ( noting sentencing modification requiring enhancements for ranked drug offenses to be
served consecutively).




                                                                  11
No. 46015 -7 -II



sentence enhancements consecutive to the base sentences for the drug and bail jumping

convictions, but concurrent to each other.


        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.




                                                                     Lee, J.
 We concur:




                      Maoxa, P.J.



 AJ4J-fMJ.
                       Sutt n, J.




                                              12
