                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          April 28, 2020



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                             No. 52481-3-II

                                 Respondent.

           vs.                                                 UNPUBLISHED OPINION

    ADRIAN TUBIS BROUSSARD†,

                                 Appellant.



          MAXA, J. – Adrian Broussard appeals his convictions of first degree theft, forgery, two

counts of unlawful possession of a controlled substance with intent to deliver, and one count of

unlawful possession of a controlled substance.

          Broussard’s financial crime convictions arose from his involvement in fraudulent

transactions with his half-brothers, Derek James and Anthony Smith. The transactions involved

creating auto dealer businesses and using invalid social security numbers in order to obtain loans

from credit unions to purchase cars from the auto dealers. The men would then deposit the loan

amount into a bank account for one of the auto dealer businesses but would not actually complete

the car sale.

          Broussard created an auto dealer business, opened business banking accounts for that

business, and obtained a loan to purchase a car from James’s auto dealer business using an


†
    Also identified as Adrian Tobias Elrid Broussard during trial.
No. 52481-3-II


invalid social security number. James deposited the check for that loan in a bank account for one

of his auto dealer businesses. The bank’s recorded video surveillance showed that Broussard

was with James when he deposited the check.

       Broussard’s drug convictions arose from a traffic stop in Tacoma. An officer ran a

records check on Broussard’s vehicle, which showed that Broussard had failed to transfer title

for his vehicle within 45 days as the law required. After stopping Broussard, the officer

recognized him from a Tacoma Police bulletin issued regarding an investigation concerning

Broussard, James, and Smith. Broussard was arrested, and a search of his person revealed

several baggies of cocaine, multiple ecstasy pills, and heroin.

       We hold that (1) the trial court did not violate Broussard’s right to counsel by denying his

motion to replace his defense counsel, (2) the court did not err in denying Broussard’s motion to

sever his trial from his codefendant Smith’s trial, (3) the court did not err in admitting evidence

regarding James’s crimes, (4) Broussard’s ineffective assistance of counsel claims based on

defense counsel’s failure to renew his motion for a severance and to move to suppress the

evidence seized from him fail, and (5) the evidence was sufficient to sustain the two convictions

of unlawful possession of cocaine and ecstasy with intent to deliver. Accordingly, we affirm

Broussard’s convictions.

                                              FACTS

Broussard’s Financial Crimes

       On April 12, 2016, Broussard registered a business named “Brown Bear Autos” with the

Secretary of State. On the same day, James registered a business named “Fast Lane Autos.” On

June 17, Smith registered a business named “A.J. Motors.” Broussard, James, and Smith each

opened bank accounts for their businesses.




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No. 52481-3-II


       On June 10, Broussard applied for an auto loan from TAPCO Credit Union to purchase a

vehicle from Fast Lane Autos. In completing the application, Broussard used an invalid social

security number that had never been assigned to any person. Surveillance footage showed that it

was Broussard who applied for and obtained the loan. TAPCO issued a check to Broussard in

the amount of $13,400 made payable to Fast Lane Autos. On the same day, James deposited the

TAPCO check into a Wells Fargo banking account for Fast Lane Autos. Broussard never

purchased the vehicle.

       Tacoma Police investigated the fraudulent transactions involving Broussard, James, and

Smith. Following this investigation, a bulletin was issued for probable cause to arrest for theft

and to notify other law enforcement officers about the investigation.

Broussard’s Drug Crimes

       On September 2, Tacoma Police Officer Randall Frisbie ran a records check on a vehicle

Broussard was driving. The records check showed that the title for the vehicle had not been

transferred within the 45-day period required. Based on this information, Frisbie initiated a

traffic stop of the vehicle. During the traffic stop, Frisbie identified the driver of the vehicle as

Broussard and recognized Broussard’s name from the Tacoma Police bulletin. Frisbie told

Broussard he was under arrest. Broussard drove away, but he was located and arrested.

       At the jail, Broussard was searched by a booking officer. During the search, the officer

seized a plastic baggie containing 19.2 grams of cocaine in 21 individual baggies, 68 ecstasy

pills, and a small plastic bag containing heroin.

Criminal Charges and Motion to Sever

       The State charged Broussard with first degree theft, forgery, attempting to elude a

pursuing police vehicle, two counts of unlawful possession of a controlled substance with intent




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No. 52481-3-II


to deliver (cocaine and ecstasy), and unlawful possession of a controlled substance (heroin). He

was charged as both a principal or as an accomplice on the theft and forgery charges. James and

Smith were charged as codefendants. The three cases were joined for trial, but James eventually

entered a guilty plea prior to trial. Broussard and Smith both moved to sever their cases. The

trial court denied both motions.

Admission of Evidence Regarding James’s Crimes

       The State sought to introduce other act evidence concerning James’s crimes. This

evidence consisted of loan applications, bank account applications, photographs of deposit slips

and checks, and bank statements – most bearing James’s name – and surveillance video

snapshots from these transactions.

       The trial court admitted this evidence under ER 404(b) and ER 403 as “circumstantial

evidence of an overall criminal scheme and the defendants’ knowledge of it and their motive and

intent to participate.” 7 Report of Proceedings (RP) at 951. The court found that the jury could

draw reasonable inferences from the other act evidence that “each man knew and understood the

overall scheme and participated to one degree or another in fraudulently obtaining loans for fake

auto sales using social security numbers that belonged to others or in one case a number that had

never been issued by the Social Security Administration.” 7 RP at 946.

Request to Replace Defense Counsel

       On the first day of trial, Broussard requested that the trial court remove defense counsel

and substitute a private attorney. Broussard alleged that defense counsel argued with him, told

him to meet at his office but did not show, did not come to talk to him about his case while

incarcerated, and lied to him. Broussard also expressed concerns about his ability to

communicate with defense counsel and about counsel properly representing him.




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No. 52481-3-II


       Defense counsel joined Broussard in his request. He stated to the court:

       I know that in all my years of practice, I know that I don’t always get along with
       my clients, but I am concerned about the inability for Mr. Broussard and I to
       communicate, and it has gotten to a point where it has just totally deteriorated, Your
       Honor.
       ...

       I was appointed on a different case, Your Honor, where [Broussard] was charged
       with felony elude. That happened in January. We were able to do motions. We
       were able to do things in going forward with that case. Mr. Broussard ended up
       resolving that matter. We negotiated with the State and he ended up entering a
       guilty plea on it, Your Honor.
       ...

       Mr. Broussard and I, I would say our communication has been strained and it's been
       that way for a while. But, again, that by itself is not enough, Your Honor. It’s just
       that my concern is – and it’s very clear to me that Mr. Broussard does not want to
       communicate with me, and I do not see how I can go forward in this trial if he's not
       going to communicate and we’re going to be able to discuss what happened in trial,
       what do we expect tomorrow, what do we need to be careful about. I mean, there’s
       all these things, Your Honor. I don’t see, based on what happened on Friday and
       based on what’s happening today, is that I don't see how I can continue to represent
       him.

1 RP at 6, 19, 21.

       The court stated that it had received mixed information from defense counsel and

Broussard in that defense counsel had said that he had effective communications with Broussard

in another case. The court asked defense counsel if he was prepared to try Broussard’s case and

he stated he could go forward.

       The State also expressed concerns about the breakdown in communication. To that end,

the State suggested that the trial court hold an in-camera hearing where defense counsel could

elaborate on the issues with Broussard without violating any attorney-client privilege.

       The trial court denied Broussard’s request to remove defense counsel or continue his

case. The court also found that Broussard’s request to remove defense counsel was untimely

because it was not made until the first day of trial.



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No. 52481-3-II


Broussard’s Clothing at Trial

          A few days before trial, defense counsel had visited Broussard in jail to discuss wearing

civilian clothing at trial. Defense counsel told the court that Broussard would not cooperate.

The next day, Broussard appeared in court in jail clothes. Broussard claimed that defense

counsel had not attempted to talk to him about civilian clothing, but defense counsel maintained

that he had tried – unsuccessfully – to communicate with Broussard.

          The trial court tried to inquire about Broussard’s decision to wear jail clothes and to warn

him of the likely prejudicial impact it would have on the jury. Broussard was uncooperative and

refused to answer the court directly at times. The court observed that Broussard was

“deliberately being evasive” and “unwilling to answer [its] questions,” and stated it was “not

going to waste any more of [its] time asking this question again this morning.” 3 RP at 245-46.

          Ultimately, the court concluded that it was “convinced that if there is a breakdown in

communication here, it’s because Mr. Broussard has made a deliberate decision to not talk with

his lawyer.” 2 RP at 61. The court reasoned that “Mr. Broussard, even in the face of the Court’s

directive yesterday that he is to wear civilian clothing today to court and that he is to go forward

in this case with [defense counsel] as his lawyer, . . . has now continued on with his deliberate

decision to not communicate with his attorney because he wants a different lawyer. He doesn’t

want to represent himself. He doesn’t want to have a different attorney step into this case who’s

paid at public expense.” 2 RP at 62.

Verdict

          The jury found Broussard guilty of first degree theft, forgery, two counts of unlawful

possession of a controlled substance with intent to deliver, and one count of unlawful possession

of a controlled substance. Broussard appeals his convictions.




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No. 52481-3-II


                                            ANALYSIS

A.     MOTION TO SUBSTITUTE DEFENSE COUNSEL

       Broussard argues that the trial court violated his constitutional right to counsel by

denying his request to remove his appointed defense counsel. We disagree.

       1.    Legal Principles

       A criminal defendant has a constitutional right to counsel under the Sixth Amendment to

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

However, a defendant does not have an absolute right to choose his counsel. State v. Varga, 151

Wn.2d 179, 200, 86 P.3d 139 (2004). To justify replacing appointed defense counsel, the

defendant must show good cause. Id. Good cause includes a conflict of interest, irreconcilable

conflict, or a complete breakdown in communication. Id.

       When the relationship between the defendant and defense counsel has completely

collapsed, the trial court’s refusal to substitute new counsel violates the right to counsel. State v.

Cross, 156 Wn.2d 580, 606, 132 P. 3d 80 (2006). But the defendant’s general dissatisfaction

with or loss of trust or confidence in defense counsel is not sufficient cause to appoint new

counsel. Varga, 151 Wn.2d at 200. The relationship between the defendant and counsel must be

so diminished as to prevent presentation of an adequate defense. State v. Stenson, 132 Wn.2d

668, 734, 940 P.2d 1239 (1997).

       We review a trial court’s denial of a request to replace appointed counsel for an abuse of

discretion. Varga, 151 Wn.2d at 200. When reviewing such a decision, we consider (1) the

extent of any conflict between the defendant and counsel, (2) the adequacy of the trial court’s

inquiry into that conflict, and (3) the timeliness of the motion to appoint new counsel. Cross,

156 Wn.2d at 607.




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No. 52481-3-II


       2.     Extent of the Conflict

       Broussard asserts that he and his counsel had a complete breakdown in communications

that deprived Broussard of his right to counsel. However, “[i]t is well settled that a defendant is

not entitled to demand a reassignment of counsel on the basis of a breakdown in communications

where he simply refuses to cooperate with his attorneys.” State v. Schaller, 143 Wn. App. 258,

271, 177 P.3d 1139 (2007); see also State v. Thompson, 169 Wn. App. 436, 457-58, 290 P.3d

996 (2012).

       Here, the trial court found that Broussard caused the communication breakdown by

refusing to talk with his defense counsel. The court concluded that it was “convinced that if

there is a breakdown in communication here, it’s because Mr. Broussard has made a deliberate

decision to not talk with his lawyer.” 2 RP at 61. The court specifically observed that Broussard

was actively engaged in reviewing paperwork and having some level of discussion with defense

counsel during jury selection and the exercise of preemptory challenges. Therefore, the court

determined that Broussard was “capable, if . . . willing, to communicate appropriately with

[defense counsel].” 1 RP at 42.

       We conclude that the court’s findings are supported by the record. Defense counsel

indicated that the reason for the strain was Broussard’s own refusal to cooperate and not defense

counsel’s failure to engage or try to communicate. In reflecting on his ability to communicate

with Broussard, defense counsel stated that “Mr. Broussard does not want to communicate with

me . . . I do not see how I can go forward in this trial if he’s not going to communicate.” 1 RP at

20-21 (emphasis added). Defense counsel further stated, “I don’t believe he wishes me to be a

part of this or have communication with him or go to the jail to meet with him.” 1 RP at 26




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No. 52481-3-II


(emphasis added). Notwithstanding Broussard’s general intransigence, defense counsel stated

that he could go forward with the trial. These statements suggest that the conflict was one sided.

       The record reflects that there were communication difficulties, largely of Broussard’s

own making. Therefore, we conclude that neither the nature nor the extent of the conflict

between Broussard and his attorney justified replacing defense counsel.

       3.   Adequacy of the Trial Court’s Inquiry

       Broussard also contends that the trial court failed to make an adequate inquiry into his

request to replace defense counsel. He concedes that the court questioned whether he and

defense counsel were able to communicate. But he claims that the court should have held an in-

camera hearing to address the issue. We disagree.

       To conduct an adequate inquiry, the trial court must make a “meaningful” inquiry that

includes a “full airing” of the defendant’s concerns. Cross, 156 Wn.2d at 610. This inquiry

should “ provide a ‘sufficient basis for reaching an informed decision.’ ” Thompson, 169 Wn.

App. at 461 (quoting United States v. Adelzo–Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001)). The

court “ ‘may need to evaluate the depth of any conflict between defendant and counsel, the

extent of any breakdown in communication, how much time may be necessary for a new attorney

to prepare, and any delay or inconvenience that may result from substitution.’ ” Id. (quoting

Adelzo–Gonzalez, 268 F.3d at 777).

       Here, the trial court performed multiple inquiries into the breakdown of communications.

Both defense counsel and Broussard were allowed to express their concerns at four hearings.

The court noted that it had already granted “nine or more continuances” and it would not delay

the case any further for Broussard to find another private counsel. 1 RP at 42. Broussard points




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No. 52481-3-II


us to no Washington case law that requires the court to have done more. Therefore, we conclude

that the trial court performed an adequate inquiry into his request to replace counsel.

       4.   Timeliness of Broussard’s Request

       Broussard appears to argue that he made a timely motion for a new attorney.

Specifically, he made his request before the commencement of trial. We disagree.

       A trial court may reject a request to substitute counsel if the request is untimely. Stenson,

142 Wn.2d at 732. Here, the trial court found that Broussard’s request was untimely. We hold

that the court’s finding is supported by the record.

       Broussard brought his request to substitute a private attorney for defense counsel on the

first day of trial. But as the trial court observed, Broussard had ample opportunity to substitute

counsel before the start of trial. His case began in September 2016 and he had received nine or

more continuances. Therefore, we hold that the trial court properly found that Broussard’s

motion to substitute counsel was untimely.

       5.   Summary

       The standard of review for denial of a request to replace appointed counsel is abuse of

discretion. Varga, 151 Wn.2d at 200. We conclude that the trial court did not abuse its

discretion when it denied Broussard’s request for new counsel because (1) Broussard caused the

breakdown in communication with defense counsel, (2) the court adequately inquired into the

alleged breakdown, and (3) Broussard’s request was untimely. Accordingly, we hold that the

trial court did not err in denying Broussard’s request to replace his defense counsel.

B.     MOTION TO SEVER

       Broussard argues that the trial court erred in denying his motion to sever his trial from

Smith’s trial. We disagree.




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No. 52481-3-II


       CrR 4.4(c)(2)(i) states that the trial court should grant a severance of defendants before

trial if “it is deemed appropriate to promote a fair determination of the guilt or innocence of a

defendant.” Severance of trials is within the discretion of the trial court. State v. Moses, 193

Wn. App. 341, 359, 372 P.3d 147 (2016). Therefore, we review for an abuse of discretion a trial

court’s decision on a motion for severance under CrR 4.4(c). Id. Separate trials are not favored.

Id.

       To show that the trial court abused its discretion in denying severance, “the defendant

must be able to point to specific prejudice.” State v. Sublett, 176 Wn.2d 58, 69, 292 P.3d 715

(2012). Specific prejudice can be shown by (1) conflicting antagonistic defenses that are

irreconcilable and mutually exclusive, (2) the inability of the jury to separate massive and

complex evidence between the two defendants, (3) the fact that the codefendant will make an

inculpating statement regarding the moving defendant, and (4) a gross disparity in the weight of

the evidence against the two defendants. Moses, 193 Wn. App. at 360.

       Broussard argues that severance was appropriate because the charges against him and

against Smith were completely independent. The only connection between the two was that they

were half-brothers and they acted independently with James. However, Broussard does not

explain why this fact caused him any prejudice.

       Broussard briefly argues that there was a massive amount of evidence introduced at trial

that had nothing to do with him, which he claims confused the jury. He contends that the jury

could not separate out Smith’s bad acts from the charges against Broussard. However, as

Broussard acknowledges, the cases against him and Smith were completely separate. There is no

indication that the jury could not segregate the evidence relating to each codefendant.




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No. 52481-3-II


         In addition, the trial court instructed the jury that “[a] separate crime is charged in each

count. You must decide each count separately. Your verdict on one count should not control

your verdict on any other count.” Clerk’s Papers at 47. And each defendant was named in his

own set of to-convict jury instructions. Therefore, the court instructed the jury to evaluate the

guilt of Broussard and Smith separately.

         We hold that the trial court did not abuse its discretion in denying Broussard’s motion to

sever.

C.       ADMISSION OF JAMES’S “OTHER ACTS” EVIDENCE

         Broussard argues that the trial court erred in admitting evidence of James’s crimes under

ER 404(b). Broussard challenges the court’s ruling with respect to (1) the relevance of the

evidence and (2) the ER 403 balancing analysis. We reject Broussard’s argument.

         1.   Legal Principles

         ER 404(b) prohibits a court from admitting “[e]vidence of other crimes, wrongs, or acts .

. . to prove the character of a person in order to show action in conformity therewith.” Such

evidence may, however, “be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).

ER 404(b)’s list of other purposes for which evidence of a defendant’s prior misconduct may be

introduced is not exclusive. State v. Baker, 162 Wn. App. 468, 473, 259 P.3d 270 (2011). ER

404(b) must be read in conjunction with ER 403, which requires the trial to court to exercise its

discretion in evaluating whether relevant evidence is unfairly prejudicial. See State v.

Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090 (2014).

         Before a trial court admits evidence under ER 404(b), it must (1) find by a preponderance

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




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No. 52481-3-II


(3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the

probative value of the evidence against its prejudicial effect. Gunderson, 181 Wn.2d at 923.

The trial court must complete this ER 404(b) analysis on the record in order to permit the

appellate court to determine whether the trial court’s exercise of discretion was based on careful

and thoughtful consideration of the issue. Id.

        We review evidentiary rulings under ER 404(b) for abuse of discretion. Id. at 922. If

evidence was improperly admitted, we analyze whether the improper admission was harmless.

Id. at 926.

        2.    Relevance of the Other Act Evidence

        Broussard argues that the other act evidence was not relevant under 404(b) because a

scheme to defraud financial institutions was not an element of any of his charged crimes. We

disagree because this evidence was relevant under a theory of accomplice liability.

        Here, the trial court admitted the other act evidence of James’s crimes under ER 404(b)

and 403 as “circumstantial evidence of an overall criminal scheme and the defendants’

knowledge of it and their motive and intent to participate.” 7 RP at 951. The surveillance videos

showed Broussard and James together; Broussard procuring an auto loan from Fast Lane Motors,

owned by James; and James depositing the check for that loan into the Wells Fargo account for

Fast Lane Motors.

        The State charged Broussard both as a principal and as an accomplice to first degree theft

and forgery. To prove accomplice iabuility, the State needed to show that he knowingly

promoted or facilitated the commission of these crimes by (1) soliciting, commanding,

encouraging, or requesting another person to commit the crimes; or (2) aiding or agreeing to aid

another in the planning or committing of the crimes. RCW 9A.08.020(3)(a)(i)-(ii).




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No. 52481-3-II


       The trial court found that the jury could draw reasonable inferences from the other act

evidence that “each man knew and understood the overall scheme and participated to one degree

or another in fraudulently obtaining loans for fake auto sales” using false social security

numbers. 7 RP at 946. We conclude that the other act evidence linking Broussard and James

amply supported this inference and was relevant to prove Broussard’s knowledge, motive, and

intent under an accomplice liability theory. Therefore, we reject Broussard’s relevance

argument.

       3.   ER 403 Balancing

       Broussard argues that evidence regarding James’s crimes was not admissible under ER

403 because it was overly prejudicial. He claims that by focusing on James’s crimes, the State

made it appear that Broussard was involved in a large scale plan to commit fraud. We disagree.

       Here, the trial court admitted the evidence of James’s crimes as “circumstantial evidence

of an overall criminal scheme,” “the defendants’ knowledge of it,” and “their motive and intent

to participate.” 7 RP at 951. ER 404(b) plainly states that other acts may be admitted to

demonstrate knowledge, motive, and intent. The court found that the evidence was highly

probative to that end. The evidence demonstrated a scheme among James, Smith, and Broussard

to fraudulently obtain auto loans and Broussard’s part in this scheme.

       The trial court determined that any risk of prejudice was minimal. The court observed

that evidence of James’s activity was separate from that of Broussard and Smith. For example,

the documentation regarding each transaction bore the names or photographs of who was

involved. Therefore, the risk of the jury being confused or misled by the evidence was very low.

That court also noted that the State did not attempt to mislead the jury into thinking that




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No. 52481-3-II


Broussard should be held accountable for fraudulent transactions in which he did not directly

participate. Further, the court found that the evidence had no emotional or inflammatory content.

       We conclude that the trial court did not abuse its discretion in ruling that ER 403 did not

preclude admission of the evidence of James’s crimes. Therefore, we hold that the trial court did

not err in admitting this evidence.

D.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Broussard contends that his trial counsel was ineffective because he failed to (1) renew

Broussard’s motion to sever and (2) file a motion to suppress evidence obtained as a result of the

traffic stop. We disagree.

       1.    Standard of Review

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

Washington Constitution guarantee criminal defendants the right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review ineffective

assistance of counsel claims de novo. Id. at 457.

       To prevail on an ineffective assistance claim, the defendant must show both that (1)

defense counsel’s representation was deficient and (2) the deficient representation prejudiced

him or her. Id. at 457-58. Representation is deficient if, after considering all the circumstances,

it falls below an objective standard of reasonableness. Id. at 458. Prejudice exists if there is a

reasonable probability that, except for counsel’s error, the result of the proceeding would have

been different. Id.

       2.    Failure to Renew Motion to Sever

       Broussard contends that his attorney’s failure to renew the severance deprived him of

effective assistance of counsel. We disagree.




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No. 52481-3-II


       If a defendant’s pretrial motion for severance has been denied, he or she may renew the

motion on the same ground before or at the close of all the evidence. CrR 4.4(a)(2). Severance

is waived by failing to renew the motion. CrR 4.4(a)(2). Here, defense counsel failed to renew

the motion to sever and therefore the motion was waived.

       However, defense counsel’s failure to file a renewed motion does not support an

ineffective assistance of counsel claim unless the defendant can show that the motion would have

been granted if made. In re Pers. Restraint of Davis, 152 Wn.2d 647, 711, 101 P.3d 1 (2004).

As we hold above, the trial court did not err in denying the pretrial motion to sever. Because

Broussard provides no reason to believe that the trial court would have granted a renewed

motion, he cannot show deficient performance or prejudice. We hold that Broussard’s

ineffective assistance of counsel claim on this basis fails.

       3.    Failure to File Motion to Suppress

       Broussard contends that his attorney’s failure to file a suppression motion based on a

pretextual stop constituted ineffective assistance of counsel. We hold that the record is

insufficient for Broussard to meet his burden of showing ineffective assistance of counsel.

             a.    Legal Principles

       In the context of failing to file a motion to suppress, defense counsel’s performance will

only be considered deficient if the defendant can show that the trial court likely would have

granted the motion. State v. D.E.D., 200 Wn. App. 484, 490, 402 P.3d 851 (2017). “[T]here is

no ineffectiveness if a challenge to admissibility of evidence would have failed.” State v.

Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007). Therefore, the question here is whether the

trial court likely would have granted a motion to suppress evidence related to the traffic stop if

defense counsel had filed one.




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No. 52481-3-II


       Article I, section 7 of the Washington Constitution prohibits pretextual traffic stops.

State v. Ladson, 138 Wn.2d 343, 358, 979 P.2d 833 (1999). A pretextual traffic stop occurs

when a law enforcement officer stops a vehicle in order to conduct a speculative criminal

investigation unrelated to enforcement of the traffic code. Id. at 349. Whether a given stop is

pretextual depends on the totality of the circumstances, “including both the subjective intent of

the officer as well as the objective reasonableness of the officer’s behavior.” Id. at 359. A

traffic stop is not pretextual even where the officer has an additional motivation for conducting

the stop apart from a suspected traffic violation, as long as the officer’s purported motive in

investigating a suspected traffic violation was an actual, conscious, and independent reason for

the stop. State v. Chacon Arreola, 176 Wn.2d 284, 299-300, 290 P.3d 983 (2012).

             b.    Validity of the Traffic Stop

       Article I, section 7 prohibits warrantless searches unless one of the exceptions to the

warrant requirement applies. State v. Froehlich, 197 Wn. App. 831, 837, 391 P.3d 559 (2017).

One exception is a traffic stop based on a “reasonable articulable suspicion of either criminal

activity or a traffic infraction.” Chacon Arreola, 176 Wn.2d at 292-93.

       However, a traffic stop purportedly based on a traffic infraction is unconstitutional under

article I, section 7 when the infraction is a pretext for conducting a criminal investigation

unrelated to the driving. Id. at 294. “A pretextual traffic stop occurs when a police officer relies

on some legal authorization as a ‘mere pretext to dispense with [a] warrant when the true reason

for the seizure is not exempt from the warrant requirement.’ ” Chacon Arreola, 176 Wn.2d at

294 (quoting Ladson, 138 Wn.2d at 358). To determine whether a stop is pretextual, the court

considers the totality of the circumstances, which includes both the officer’s subjective intent and

the objective reasonableness of the officer’s behavior. Ladson, 138 Wn.2d at 358-59.




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No. 52481-3-II


       A traffic stop based on both legitimate and illegitimate grounds – a “mixed-motive”

traffic stop – does not violate article I, section 7 under certain circumstances. Chacon Arreola,

176 Wn.2d at 297-300. The court in Chacon Arreola held that a traffic stop is not pretextual if

“investigation of either criminal activity or a traffic infraction (or multiple infractions), for which

the officer has a reasonable articulable suspicion, is an actual, conscious, and independent cause

of the traffic stop.” Id. at 297. The court stated that the presence of an illegitimate reason for the

traffic stop is material to “whether the officer really stopped the vehicle for a legitimate and

independent reason (and thus would have conducted the traffic stop regardless).” Id. at 299.

             c.    Analysis

       Broussard argues that the facts and circumstances in the record indicate that the traffic

stop was pretextual. He appears to claim that failure to transfer title, in violation of RCW

46.12.650(5)(a)’s requirement of transferring title within 15 days of delivery of a vehicle, does

not constitute a traffic infraction under RCW 46.63.020. We disagree.

       This court held in State v. Hendricks that the failure to apply for a certificate of title

within 15 days of delivery of a vehicle is a “traffic violation” under RCW 46.63.020. 4 Wn.

App. 2d 135, 143, 420 P.3d 726 (2018). Therefore, the evidence shows that Broussard was

stopped on legitimate grounds. Officer Frisbie initiated a traffic stop of Broussard after running

a records check on Broussard’s vehicle. The records check revealed that title of the vehicle had

not yet been transferred.

       If defense counsel had filed a suppression motion on the physical evidence seized from

Broussard incident to the stop, the trial court would have had to determine whether this was a

mixed-motive traffic stop. If so, the court would have had to decide if the vehicle’s title was an

“actual, conscious, and independent cause of the traffic stop” and whether Broussard made an




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“independent and conscious determination that a traffic stop to address a suspected traffic

infraction [was] reasonably necessary in furtherance of traffic safety and the general welfare.”

Chacon Arreola, 176 Wn.2d at 297, 298-99. In addition, the trial court would have had to

determine whether Broussard’s arrest was supported by probable cause.

       But the record is insufficient for us to determine how the trial court would have resolved

these issues. Because there was no suppression hearing, Frisbie was not asked about his

motivation for stopping Broussard’s car beyond confirming that the title to the vehicle had not

yet been transferred. There is no evidence that reveals whether Broussard’s failure to transfer

title was an actual, conscious and independent reason for the stop or whether Frisbie determined

that a traffic stop was reasonably necessary to address the violation. There is no evidence that

reveals whether Frisbie would have made the traffic stop based on the failure to transfer title

regardless of pretext, if any. And the record is not fully developed regarding the circumstances

of Broussard’s arrest.

       The absence of a sufficient record precludes Broussard from meeting his burden of

proving that the trial court would have granted a suppression motion if defense counsel had filed

one. Therefore, Broussard cannot establish that his defense counsel’s performance was deficient.

See D.E.D., 200 Wn. App. at 490.

       Broussard argues that we should remand this matter for a suppression hearing under State

v. Robinson, 171 Wn.2d 292, 306, 253 P.3d 84 (2011). But Robinson is distinguishable. The

appropriate means for addressing an issue that requires evidence not in the record is through a

personal restraint petition. State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842 (2018).

       We hold that Broussard’s ineffective assistance of counsel claim on this basis fails.




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E.     SUFFICIENCY OF THE EVIDENCE

        Broussard argues that the State failed to present sufficient evidence to prove that he

intended to deliver the cocaine and ecstasy that he possessed. He argues that there was no

evidence other than the quantity of drugs to support the intent to deliver element of the offense.

We disagree.

        1.      Standard of Review

        The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the

court views the evidence and all reasonable inferences drawn from that evidence in the light

most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of

fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally

reliable. Id.

        2.      Legal Principles

        In order to prove unlawful possession of a controlled substance with intent to deliver, the

State had to prove (1) unlawful possession (2) of a controlled substance (3) with the intent to

deliver. RCW 69.50.401(1).1

        As a general rule, “[m]ere possession of a controlled substance, including quantities

greater than needed for personal use, is not sufficient to support an inference of intent to deliver.”

State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). But a finder of fact can infer




1
 RCW 69.50.401 was amended in 2019. Because those amendments do not affect our analysis,
we cite to the current version of the statute.


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No. 52481-3-II


intent to deliver from possession of a significant amount of a controlled substance plus at least

one additional factor. Id. Several courts have upheld convictions for intent to deliver based on a

large amount of drugs and additional evidence. See, e.g., State v. Hotchkiss, 1 Wn. App.2d 275,

281-82, 404 P.3d 629 (2017) (8.1 grams of methamphetamine and $2,150 in cash sufficient);

O’Connor, 155 Wn. App. at 291 (a large amount of marijuana, a sophisticated grow operation,

and a scale sufficient); State v. Simpson, 22 Wn. App. 572, 575-76, 590 P.2d 1276 (1979)

(quantity of drugs and nature of packaging sufficient); State v. Harris, 14 Wn. App. 414, 418-19,

542 P.2d 122 (1975) (quantity of drugs, and a scale sufficient).

       3.    Cocaine

       Officer Martin testified that Broussard had 19.2 grams of cocaine individually packaged

in 21 baggies. Martin testified that drug dealers often package narcotics for sale in “plastic

baggies” or a “sandwich bag that’s twisted up and . . . clipped.” 8 RP at 1052. He also stated the

most common weight he had seen for cocaine sold at the street level was around seven grams. In

addition, if one person were to consume all 19 grams, the result would be “undoubtedly fatal.” 8

RP at 1071. Therefore, the quantity Broussard had on his person – “slightly less than one gram

per bindle” – would “be consistent with individual sales, or . . . the preparation of individual

sales.” 8 RP at 1065.

       Broussard argues that merely possessing a quantity of drugs that he could have sold is

insufficient to establish intent to deliver. But the quantity of drugs plus the nature of the

packaging supports an inference of possession with an intent to deliver the cocaine. Simpson, 22

Wn. App. at 575-76; Harris, 14 Wn. App. at 418-19.

       Broussard also argues that there was no intent to deliver because the baggies were

wrapped together under his clothing. Therefore, the drugs were “secreted in a way that could not




                                                 21
No. 52481-3-II


have been accessed [for delivery] without great difficulty.” Br. of Appellant at 44. But viewing

the evidence in the light most favorable to the State, it is conceivable that Broussard could still

access these drugs to sell individually.

        We hold that the State presented sufficient evidence to prove that Broussard had an intent

to deliver the cocaine.

        4.   Ecstasy Pills

        Officer Martin testified that Broussard had 68 ecstasy pills containing methamphetamine.

In total, the pills had an approximate street value of $340. And he stated that if one person

consumed all of the pills, the result would be fatal. Based on these observations, Martin testified

the quantity Broussard had on his person was not consistent with personal use.

        Two pieces of evidence beyond the number of pills support an inference that Broussard

had an intent to sell the ecstasy pills. First, the cocaine in his possession was packaged for sale.

That fact suggested that Broussard also planned to sell the ecstasy.

        Second, at the time of his arrest, Broussard stated he was planning on attending a Wiz

Khalifa concert in Seattle, which would present a rave party environment. Martin testified that

Broussard’s plan to attend the rave party concert was significant because

methylenedioxymethamphetamine (MDMA), a byproduct of methamphetamine, “was made big

and made popular during the Rave cultures in about the early 2000s.” 8 RP at 1053.

Accordingly, “there [wa]s likely going to be the potential for the need or want for specific types

of narcotics” at the concert. 8 RP at 1065.

        We hold that the State presented sufficient evidence to prove that Broussard had an intent

to deliver the ecstasy pills.




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                                          CONCLUSION

        We affirm Broussard’s convictions.

        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.



                                                      MAXA, J.



 We concur:



 SUTTON, A.C.J.




 GLASGOW, J.




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