                                                                         FILED
                                                                     OCTOBER 2, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35381-8-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
EDWARD LANE HART,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Edward Hart appeals from convictions for second degree child rape

and second degree child molestation, primarily arguing that the trial court erred in

disqualifying his retained attorney. The court did not err by disqualifying an attorney

who was a factual witness to the victim’s report of the crimes. We affirm the convictions

and remand to modify the judgment and sentence.

                                          FACTS

       Mr. Hart was convicted of sexually abusing his wife’s daughter, A.C. At age 14,

A.C. reported to her mother that Mr. Hart had abused her over the previous nine years.

Her mother did not believe the accusation, a fact that seriously strained the mother-
No. 35381-8-III
State v. Hart


daughter relationship. A.C. then reported the abuse to Mr. Hart’s family and to his

attorney and personal friend, Julie Anderson. Ms. Anderson did not believe the

accusation and discussed it with A.C.’s mother. Since neither woman believed A.C.,

neither one reported to the police.

       At age 16, A.C. performed occasional office work for attorney Anderson. That

fall, she hand wrote a recantation on a declaration form used by the Anderson Law

Office. Ex. 3. A.C. would later testify that her mother sent her to Ms. Anderson, who

then had her write the note. In their testimony, both Anderson and the mother denied

involvement.

       When A.C. was 25, her mother’s marriage to Mr. Hart was dissolved. After the

dissolution was final, A.C. and her mother reported the abuse to law enforcement. Both

women described a birthmark on Mr. Hart’s penis. The investigating detective obtained a

search warrant authorizing him to photograph the birthmark. The detective reported

seeing a mark, but it was indistinct in the detective’s photos.

       Eventually, the prosecutor filed two counts of first degree child rape and two

counts of second degree child rape against Mr. Hart. Ms. Anderson appeared as retained

counsel for Mr. Hart. She moved to dismiss the charges on statute of limitations grounds.

The trial court denied the motion.

       During defense interviews of A.C. and her mother, the prosecution learned of Ms.

Anderson’s relationship to the case, including the fact that A.C. had disclosed the abuse

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State v. Hart


to Ms. Anderson years earlier. The State then moved to disqualify Ms. Anderson on the

basis that she was a potential witness in the case. The defense opposed the motion,

arguing that there was no attorney-client relationship between Anderson and A.C., and

that the only issues she would testify about were uncontested matters.

      The trial court granted the motion, stating:

      I am going to grant the State’s motion to disqualify you, Ms. Anderson,
      from this case, and my concern is very much . . . . this could be a real
      situation of a he said/she said swearing match where credibility is going to
      be of the utmost importance for the jury to evaluate because this long after
      the allegations, there’s not going to be any other kind of physical evidence.
              Your declaration indicates that you had conversations with Mr. Hart,
      with Ms. Stewart, the mother, and with the alleged victim back at this time
      period when this was first brought to light. Further, I don’t know if—I
      guess I wouldn’t rule out the possibility that the State could end up calling
      you as a witness, depending on what the nature of the defense is, as a
      rebuttal witness, but I think that Mr. Hart would be deprived potentially of
      a witness that might be favorable for him in terms of you and your
      knowledge of the event back many years ago if you are acting as his
      attorney in this case.
              If Mr. Hart is unable to hire another private attorney, he can ask the
      Court to appoint one for him. Your implication of your statement is that
      many people feel that getting a public defender isn’t as good as getting a
      private attorney. I just don’t think that that’s really true here, at least in
      Chelan County, where, you know, we have, from the Court’s viewpoint, a
      consistently high level of representation and good outcomes at trial, just
      had one last week on a high profile case where the defense—although the
      gentleman was convicted of a gross misdemeanor, it was far less than the
      original charge. So I understand Mr. Hart’s desire to have you continue in
      this case, but it seems to the Court that you are potentially a witness in this
      case and so I’m going to grant the motion to disqualify you.

Supplemental Report of Proceedings at 10-11.



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       Because Mr. Hart was unable to retain a new attorney, the court appointed counsel

for him. The State called Ms. Anderson in its case-in-chief. She testified to her long-

term relationship with Mr. Hart, A.C., and A.C.’s mother. Anderson denied involvement

in the recantation note and did not know why it was on her law firm’s form. She also told

the jury that A.C. had reported the abuse to her, but that, like the child’s mother, she did

not believe the allegation.

       The State amended charges during trial to one count of second degree child rape

and one count of second degree child molestation prior to resting. The amended charges

were alleged to have occurred between January 1, 2002, and December 31, 2004. The

only witness called by the defense was an investigator for the public defender’s office.

He had taken pictures that morning of the defendant’s penis and presented the photos to

the jury over the State’s objection about untimely discovery. When cross-examining the

investigator, the prosecutor stated: “It’s amazing, the advances in plastic surgery these

days, isn’t it?” Report of Proceedings (RP) at 485. The court sustained the defense

objection and struck the comment from the record.

       During closing argument, the defense argued that A.C. was not credible and cited

the photographic proof that there was no mark on his penis. In rebuttal, the prosecutor

pointed out that Mr. Hart had 13 months to have the mark removed and only that very

day had he taken pictures to show that there was no mole. She then argued that there had

been “amazing advances in plastic surgery these days.” The trial court sustained an

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No. 35381-8-III
State v. Hart


objection to the argument. She then simply noted for the jury, without objection, that Mr.

Hart had 13 months to remove the mark. RP at 533-534.

       The jury convicted Mr. Hart as charged. After a timely appeal to this court, a

panel heard argument on the case.

                                       ANALYSIS

       This appeal raises arguments concerning the removal of Ms. Anderson and the

prosecutor’s plastic surgery remarks. It also raises three arguments concerning aspects of

the judgment and sentence. We address first the removal of counsel argument before

turning to the prosecutor’s comments. We will then jointly consider the challenges to the

judgment and sentence.

       Removal of Counsel

       Mr. Hart initially argues that the trial court denied him his counsel of choice when

Ms. Anderson was removed in light of her role as a witness. The trial court did not err in

entering the removal order.

       The decision whether or not to disqualify an attorney is reviewed for abuse of

discretion. Pub. Util. Dist. No. 1 of Klickitat County v. Int’l Ins. Co., 124 Wn.2d 789,

812, 881 P.2d 1020 (1994); Am. States Ins. Co. ex rel. Kommavongsa v. Nammathao,

153 Wn. App. 461, 466, 220 P.3d 1283 (2009). Discretion is abused when it is exercised

on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d



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State v. Hart


12, 26, 482 P.2d 775 (1971). Discretion also is abused when it is exercised contrary to

law. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).

       The Sixth Amendment guarantee of the right to counsel includes a criminal

defendant’s right to select counsel of one’s choice. United States v. Gonzalez-Lopez, 548

U.S. 140, 146-148, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). However, “even for

defendants with private attorneys, the right to counsel of choice is not absolute.” State v.

Hampton, 184 Wn.2d 656, 663, 361 P.3d 734 (2015). Gonzalez-Lopez noted that trial

courts have “wide latitude” in balancing the right to counsel of choice “against the

demands of its calendar.” 548 U.S. at 152. Hampton acknowledged this balancing as a

discretionary exercise for the trial court. 184 Wn.2d at 663 (quoting State v. Aguirre, 168

Wn.2d 350, 365, 229 P.3d 669 (2010)). Courts are reluctant to disqualify a lawyer absent

compelling circumstances. Kommavongsa, 153 Wn. App. at 466. A trial court should

enter findings concerning (1) the materiality of the testimony, (2) the necessity for the

testimony, and (3) any prejudice to the client. State v. Sanchez, 171 Wn. App. 518, 545,

288 P.3d 351 (2012).

       RPC 3.7 states the lawyer as witness rule. The section relevant to this case

provides:

           (a) A lawyer shall not act as advocate at a trial in which the lawyer is
       likely to be a necessary witness unless:
           ....
           (3) disqualification of the lawyer would work substantial hardship on
       the client.

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       The trial court concluded that defense counsel was a possible witness for the

prosecution and also could be an important witness for the defense in a case that likely

would turn on witness credibility.1 These conclusions were certainly tenable bases for

determining that counsel likely would be a necessary witness and could no longer act as

an advocate. RPC 3.7(a). They also satisfy the first two questions of the Sanchez test—

the testimony was material and necessary. The remaining question is whether

disqualification would work a substantial hardship on Mr. Hart. RPC 3.7(a)(3); Sanchez,

171 Wn. App. at 545.

       The only basis for claiming hardship was that Mr. Hart could no longer afford an

attorney and would need to have appointed counsel. That “hardship” was easily

remedied by the trial court’s appointment of experienced counsel to represent Mr. Hart at

public expense. The trial court also rejected the implied argument that appointed counsel

were not as capable as retained attorneys, pointing to recent successes by local public

defenders. This unsupported allegation simply does not establish substantial hardship.




       1
         In light of the importance at trial of the testimony concerning the recanted
statement written on her firm’s pleading paper and the victim’s allegation that Ms.
Anderson was behind it, hindsight demonstrates that the trial court’s observation was
correct.



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No. 35381-8-III
State v. Hart


       The trial court had very tenable bases for removing Ms. Anderson. Her testimony

was necessary for both sides. The court did not abuse its discretion by disqualifying Mr.

Hart’s initial counsel of choice.

       Prosecutorial Misconduct

       Mr. Hart next argues that the prosecutor engaged in egregious misconduct

requiring a new trial. However, we conclude that the trial court properly addressed the

prosecutor’s statements.

       The standards governing this issue are well settled. The appellant bears the burden

of demonstrating prosecutorial misconduct on appeal and must establish that the conduct

was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239

(1997). Prejudice occurs where there is a substantial likelihood that the misconduct

affected the jury’s verdict. Id. at 718-719. The allegedly improper statements should be

viewed within the context of the prosecutor’s entire argument, the issues in the case, the

evidence discussed in the argument, and the jury instructions. State v. Brown, 132 Wn.2d

529, 561, 940 P.2d 546 (1997).

       Reversal is not required where the alleged error could have been obviated by a

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The

failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned

that it evinced an enduring and resulting prejudice that could not have been neutralized

by an admonition to the jury. Id.; State v. Swan, 114 Wn.2d 613, 665, 790 P.2d 610

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No. 35381-8-III
State v. Hart


(1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Finally, a

prosecutor has “wide latitude” in arguing inferences from the evidence presented.

Stenson, 132 Wn.2d at 727.

       The court sustained defense objections both when the prosecutor questioned the

defense investigator about the “amazing advances” in plastic surgery and repeated the

comment in closing argument. In the first instance, the trial court also struck the

comment from the record at defense request. The court also gave the standard jury

instruction that the statements by the attorneys were not evidence and that only evidence

that was admitted at trial could be considered. Clerk’s Papers at 152-153. The first

question was objectionable because no evidence about any “amazing advances” had been

admitted at trial and the defense investigator was unlikely to be a competent witness on

the topic. The second comment was objectionable for the reason that no evidence about

the “amazing advances” had been presented. Since the two remarks were not evidence

and the jury was instructed not to consider the comments of the attorneys, it is not

apparent that anything more needed to be done.

       Mr. Hart nonetheless argues that the two remarks were such egregious misconduct

that only a new trial can remedy the situation. We disagree. The relevance of the mole

was clear, although the inference to be drawn was not. Three witnesses testified that one

was present in the past, while one witness testified that no mole currently existed. While

the jurors could infer that one or more witnesses were incorrect in their testimony, it was

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No. 35381-8-III
State v. Hart


equally likely that all were correctly reporting information that they had experienced at

different times over the preceding decades. It was not improper for the prosecutor to

suggest that there had been a recent change, possibly effectuated by plastic surgery, that

explained the conflict in the testimony. The phrasing of the remarks was objectionable

because there was no evidence about any advances in plastic surgery. The possibility of

plastic surgery as an explanation for the differences was not necessarily improper.

       Under these circumstances, there was not a substantial likelihood that the two

comments affected the jury’s verdict. Accordingly, Mr. Hart has not sustained his burden

of proving misconduct deprived him of a fair trial.

       Judgment and Sentence

       Mr. Hart presents three challenges to the judgment and sentence form. We jointly

consider those contentions.

       The State concedes two of the challenges and we accept one of those concessions.

First, the parties correctly note that the judgment and sentence incorrectly states that Mr.

Hart was subject to indeterminate sentencing under former RCW 9.94A.712, a provision

that was recodified at RCW 9.94A.507 by Laws of 2008, ch. 231, § 56. The judgment

and sentence should be modified to reflect the proper statute.

       Although the State concedes that the prohibition on Mr. Hart possessing sexually

explicit materials is improper, we question whether that concession is correct in light of

State v. Nguyen, No. 94883-6 (Wash. Sept. 13, 2018), http://www.courts.wa.gov/opinions

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No. 35381-8-III
State v. Hart


/pdf/948836.pdf, a decision issued immediately after we heard argument in this case.

Because the case is being remanded on other issues and the parties have not briefed

Nguyen, we leave this issue for the trial judge on remand.

       Finally, the parties do disagree about whether Mr. Hart was properly subject to the

community protection zone exclusion of current RCW 9.94A.703(1)(c). That provision

was originally enacted in 2005. See LAWS OF 2005, ch. 436, § 1. Mr. Hart was convicted

for crimes committed between 2002 and 2004. The law in effect at the time the crime

was committed governs sentencing in Washington. RCW 9.94A.345. The community

protection zone was not enacted until a year after Mr. Hart committed these offenses. It

was improper to sentence in accordance with that statute.

       Nonetheless, trial judges have long held the power to impose no-contact and

geographic restrictions as part of a judgment and sentence. See generally former RCW

9.94A.120(7) (1984); DAVID BOERNER, SENTENCING IN WASHINGTON: COMMUNITY

SUPERVISION § 4.4, at 4-4 (1985). At the time of these offenses, the restrictions were

found in former RCW 9.94A.700(5) (2000).

       Accordingly, we reverse the two noted sentencing conditions. The trial court is

free to again consider any restrictions on Mr. Hart’s post-release living conditions in

accordance with the law in effect at the time of these crimes. Former RCW 9.94A.700(5).




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      The convictions are affirmed. The noted sentence conditions are reversed and the

matter remanded for further proceedings consistent with this opinion.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                 I     Kor�.
WE CONCUR:




      Siddoway, J.




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