                                                                                                                 FILED
                                                                                                         COURT
                                                                                                            G
                                                                                                                   OF
                                                                                                                      APPEALS
                                                                                                                I ISIO I

                                                                                                        20 I' JUL 15
                                                                                                                           i9110:   t




                                                                                                          7




                                                                                                                              t,




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


STATE OF WASHINGTON,                                                               No. 43967 -1 - II
                                                                         consolidated with No. 44007 - -II)
                                                                                                     5
                                       Respondent,


         v.




JONATHAN ALLEN LISCHKA,                                                       UNPUBLISHED OPINION


                                       Appellant.


         JOHANSON, C. J. —             A jury found Jonathan .Allen Lischka guilty of methamphetamine
                                                          2                                                            3
possession'     and   third   degree   malicious mischief,        but   not   guilty   of misdemeanor   harassment.


Lischka appeals his conviction for malicious mischief, arguing that ( 1) the trial court abused its

discretion when it refused to sever for trial the methamphetamine possession and harassment

charges    from the     malicious       mischief    charge,    and (   2) he received ineffective assistance of


counsel.      We affirm Lischka' s convictions because he fails to demonstrate manifest prejudice


resulting from    consolidation of        the   charges   for trial.    Lischka also fails to demonstrate that his


trial counsel was ineffective.



1
    Former RCW 69. 50. 4013 ( 2003).


2 RCW 9A.48. 090.

3
    RCW 9A.46. 020( 1).
Consol. Nos. 43967 -1 - II / 44007 -5 -II



                                                                  FACTS


           Lischka' s relationship with his long -time girlfriend, Sara Henke, ended in early 2012.

According to his close friend, Rodney Teitzel, Jr., Lischka became frustrated, angry, and agitated

by   the   breakup. Teitzel grew concerned about Lischka' s rapidly changing demeanor, noticing

that Lischka spoke illogically and that he made comments involving alleged conspiracy theories

which      included Lischka'         s   belief that his friends        were   trying    to harm him.             Lischka also accused


Teitzel    of   having    a sexual        relationship     with   Henke.           Lischka told Teitzel that he was going to

right the wrongs that had been done to him and that doing so was going to lead Lischka back to

prison.



           On March            8,   Lischka       called   Teitzel, yelling           and    screaming,        most    of   which    was



incomprehensible.          Lischka asked Teitzel whether Teitzel was on Lischka' s side or against him,

whether      he   was "   in    or out,"    and    whether Teitzel           would    help   him "   get[ ]       to the bottom of the


situation."       1 Report          of   Proceedings ( RP)        at   41.     When Teitzel responded that he was out,


Lischka told Teitzel that "[ i] t'            s   on"   and    that    he   was     coming to Teitzel'        s   house.    1 RP at 42.


Teitzel testified that he felt threatened by Lischka' s comments.
                                                                                                                             4
           In   response   to Lischka'       s call,    Teitzel   called     his   cousin,   Sergeant Robert Snaza.              Sergeant


Snaza claimed that Teitzel was frantic and concerned during the phone calls they exchanged.

While Sergeant Snaza was on the phone with Teitzel, Sergeant Snaza saw Lischka drive by, so

he   stopped      Lischka'      s vehicle.        Sergeant Snaza placed Lischka under arrest for harassment and


conducted a search             incident to that      arrest.    This search revealed a substance in Lischka' s pocket


which      Sergeant Snaza believed to be                   methamphetamine.              Sergeant Snaza testified that a very



4
    Sergeant Snaza works for the Lewis County Sheriff' s Office.

                                                                        2
Consol. Nos. 43967 -1 - II / 44007 -5 -II



upset Lischka admitted to possessing methamphetamine and that Lischka stated that things had

gone downhill for him after his breakup with Henke. The State charged Lischka with possession

of methamphetamine and misdemeanor harassment.


          Two weeks later, on March 22, Henke drove to Lischka' s residence wishing to speak to

him     about    their relationship.             At some point during their conversation, Lischka picked up a

weight from a weight -lifting bench and threw it into Henke' s car windshield, shattering the glass.

According to Henke, she and Lischka were not arguing or fighting and she was not fearful at any

time    during       the   conversation.           In discussing Lischka' s breaking of the windshield, Henke

claimed    that      she   did   not   think Lischka "     felt that [ he]     was   just do[ ing] it to [ her]" because it was


about    the    separation of        their     shared   property,   including    vehicles.    1 RP     at   109.    Henke testified


that she called the police only because she wanted Lischka to pay the insurance deductable and

because        she   needed      a     ride.    Lischka was arrested and charged with third degree malicious


mischief.




          Notwithstanding                Lischka'   s    objection       to    consolidation      of    the        harassment   and




methamphetamine possession charges with his malicious mischief charge, the trial court found

that the charges stemming from the events of March 8 were sufficiently related to the events and

charges of March 22 such that all charges could be joined under CrR 4. 3 and consolidated for

trial   under    CrR 4. 3. 1.        On the first day of trial, Lischka renewed his objection to consolidation of

the   malicious mischief allegation with                   the   other   two   charges.    The jury found Lischka guilty of

possession of methamphetamine and third degree malicious mischief, but it acquitted Lischka on

the harassment charge. Lischka appeals.




                                                                     3
Consol. Nos. 43967 -1 - II / 44007 -5 -II




                                                             ANALYSIS


                                                    I. MOTION TO SEVER


         Lischka argues that the trial court' s decision to deny his motion to sever and to

consolidate      the    charges    for trial     resulted     in   unfair       prejudice     because ( 1)    the   evidence   was



stronger on the possession charge as compared to the charges for harassment and malicious

mischief, ( 2)     Lischka     presented        different defenses for            each   of   the three   charges, (   3) the trial


court' s instructions were not adequate to mitigate the prejudice resulting from consolidation, and

 4) evidence tending to prove each charge would not have been admissible at separate trials.

Because Lischka fails to demonstrate that consolidation resulted in manifest prejudice that


outweighed concerns for judicial economy, we hold that the trial court did not . abuse its

discretion and we affirm Lischka' s conviction for malicious mischief.


                                   A. STANDARD OF REVIEW AND RULES OF LAW


          CrR 4. 3( a)( 2) permits a court to join two or more offenses in a charging document when

the offenses are based on the same conduct or on a series of acts connected together or


constituting      parts    of a   single   scheme       or   plan.       The court rules mandate that properly joined

offenses shall be consolidated for trial unless the court orders severance under the applicable


rule.    CrR 4. 3. 1.     CrR 4. 4( b) directs the court to grant severance if it concludes that severance

will    promote a       fair determination        of   the defendant'       s   guilt or    innocence     of each offense.     We


reverse    a   trial   court' s refusal    to   sever counts       only for      a manifest abuse of         discretion. , State v.


Russell, 125 Wn.2d 24, 63, 882 P. 2d 747 ( 1994),                         cert.   denied, 514 U. S. 1129 ( 1995).           A trial


court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State

v.   Thang,    145 Wn.2d 630, 642, 41 P. 3d 1159 ( 2002).                       Lischka bears the burden to establish that



                                                                     4
Consol. Nos. 43967 -1 - II / 44007 -5 - II



consolidation of his offenses for the purpose of holding only one trial resulted in manifest

prejudice      that   outweighed           concerns      for judicial economy.             State v. Bythrow, 114 Wn.2d 713,


718, 790 P. 2d 154 ( 1990).


             When we examine whether a trial court abused its discretion by refusing to sever

offenses, we recognize that consolidations of offenses for trial may prejudice a defendant in that

 1) he may become             embarrassed or confounded                   in presenting    separate     defenses; (     2) the jury may

use the evidence of one of the crimes charged to infer a criminal disposition on the part of the

defendant from          which        his   guilt    of   the    other    crimes    charged     is found;       and (   3)   the jury may

cumulate       the     evidence       of    the    various       crimes       charged   and    find    guilt    when,       if considered


separately, it       would not so          find.    Bythrow, 114 Wn.2d at 718 ( quoting State v. Smith, 74 Wn.2d

744, 755, 446 P. 2d 571 ( 1968),                   vacated in part, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747

    1972),   overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 ( 1975)).

                                                      B. THRESHOLD MATTERS


             As an initial matter, the State contends that Lischka waived appellate review of the


decision to consolidate the charges. We conclude that Lischka preserved review of his severance


motion by renewing it before or at the close of the evidence. CrR 4. 4( a)( 2) provides,

             If a defendant' s pretrial motion for severance was overruled he may renew the
             motion on    the   same ground           before     or at   the   close of all   the   evidence.    Severance is

             waived by failure to renew the motion.




s
     Some      cases    use    the    terms " join"            or "   joinder"    when consolidation is actually at issue.
Consolidation is the            combination of multiple                  charges   for the    purpose of a single           trial.    Joinder

refers specifically to the combination of multiple offenses or defendants in one charging
document.         A    separate rule was             adopted          in 1995 to   avoid      confusion of      the terms.           KARL B.
TEGLAND, 4A WASHINGTON PRACTICE: RULES PRACTICE CRR 4. 3, author' s cmts. at 325 ( 7th ed.
2008).


                                                                          5
Consol. Nos. 43967 -1 - II / 44007 -5 -II



Therefore, a defendant whose pretrial motion for severance is denied must renew that motion


during   or at the close of trial or the           issue is   waived.    State v. MacDonald, 122 Wn. App. 804,

814, 95 P. 3d 1248 ( 2004),          review     denied, 153 Wn.2d 1006.( 2005);        State v. Tollett, 12 Wn. App.

134, 135, 528 P. 2d 497 ( 1974).


           Here, the trial court granted the State' s pretrial motion to consolidate the trials over


Lischka' s      objection.      On the first day of trial, Lischka renewed his objection, again requesting

that the   offenses       be   severed.    The rule requires that Lischka renew his objection before or at the


close of all the evidence. He renewed his severance motion before the close of the evidence and,


therefore, the issue is properly before this court.6
           Next, the State        argues     how CrR 4. 3     applies   to the facts here.      But Lischka does not


contend     that the     charges were      improperly joined     under   CrR 4. 3.   Instead, Lischka argues that the


trial court abused its discretion in refusing to sever the charges to allow two separate trials.

Accordingly, CrR 4. 4 controls.

                                     C. PREJUDICE -MITIGATING FACTORS


           In determining whether severance is warranted to avoid potential prejudice, a court must

consider (      1) the   strength of      the State'   s evidence on each count, (    2) the clarity of defenses as to

each count, (         3) the court' s instructions to the jury to consider each count separately, and ( 4) the

admissibility          of evidence of      the other charges even       if   not consolidated   for trial.   Russell, 125


Wn.2d      at   63.     Lischka contends that application of each of these four factors lends credence to

his   view      that   severance was       necessary to    avoid prejudice.      On balance, application of the four




6 We do not address Lischka' s additional argument that his counsel was ineffective by failing to
timely renew his severance motion because we hold that Lischka did timely renew his motion for
severance.



                                                                6
Consol. Nos. 43967 -1 - II / 44007 -5 -II



factors   supports     the trial   court' s   decision to     consolidate     the    charges   for   one   trial.   Accordingly,

the trial court did not abuse its discretion in refusing to sever the possession and harassment

charges from the malicious mischief charge.


          First, Lischka argues that he was unfairly prejudiced at trial by consolidation of the

charges because the State' s evidence on the methamphetamine possession charge was much


stronger   than the State' s       evidence on      the     other   two   charges.    Lischka is correct that the State' s


evidence on     the      methamphetamine possession charges was                     strong.    When arrested on March 8,


Lischka    admitted       that the   methamphetamine               was    for his   personal   use.     Lischka is similarly

correct that the evidence on the malicious mischief and harassment charges was decidedly

weaker.     Without Teitzel' s testimony describing Lischka' s anger and violent tendencies from

March 8, there is less evidence that shows Lischka acted with malicious intent on March 22 for

the purpose of proving the malicious mischief charge.

          To prove third degree malicious mischief, the State was required to show that Lischka


knowingly and maliciously caused physical damage to the property of Henke under

circumstances         not    amounting         to   first     or    second        degree    malicious      mischief.         RCW


9A.48. 090( 1)(    a).    Malice is defined as


          an   evil   intent,   wish,   or    design to     vex,    annoy,   or   injure   another person.          Malice

          may be inferred from an act done in willful disregard of the rights of another, or
          an act wrongfully done without just cause or excuse, or an act or omission of duty
          betraying a willful disregard of social duty.

RCW 9A. 04. 110( 12).              Excluding the evidence from the March 8 harassment of Teitzel, the

majority of the State' s evidence on the malicious mischief charge consisted of Henke' s

testimony.        Henke testified that she drove to Lischka' s house on March 22 where she and


Lischka discussed their relationship and that at some point, Lischka threw the weight into her car


                                                                    7
Consol. Nos. 43967 -1 - II / 44007 -5 -II



windshield.   Henke stated that she and Lischka were not fighting and that she was not fearful.

Lischka did   not        testify   and   therefore    neither    admitted   nor    denied throwing the weight.        In


closing, the State suggested that Lischka' s actions were willful and therefore not accidental and

that it was unreasonable to think that throwing the weight was not something done in anger. This

is fairly weak evidence of malicious intent.

        The State' s evidence supporting the harassment against Teitzel was weaker than the

evidence supporting the other two charges. RCW 9A.46. 020 provides,

         1) A person is guilty of harassment if:
                a) Without lawful authority, the person knowingly threatens:
                    i)    To cause bodily injury immediately or in the future to the person
        threatened or to any other person; or
                ii) To cause physical damage to the property of a person other than the
        actor; or

                    iii) To subject the person threatened or any other person to physical
        confinement or restraint; or

                    iv) Maliciously to do any other act which is intended to substantially
        harm the person threatened or another with respect to his or her physical or mental
        health or safety; and
                    b)    The person by words or conduct places the person threatened in
        reasonable        fear that the threat      will   be   carried out. "   Words or conduct" includes,

        in addition to any other form of communication or conduct, the sending of an
        electronic communication.



        Here, the State' s evidence to support the harassment charge was a series of phone calls


and text messages wherein Lischka made strange accusations that Teitzel was romantically

involved with Henke, vague allegations that others had wronged him, and a declaration that


Lischka was coming to Teitzel' s house. Additionally, the State acknowledged in closing that the

harassment charge was subject to more debate than either of the other charges. When the State' s


evidence is strong on each count, there is no necessity for the jury to base its finding of guilt on

      one count on        the   strength of   the   evidence of another.         Bythrow, 114 Wn.2d   at   721 -22.   But
any




                                                                  8
Consol. Nos. 43967 -1 - II / 44007 -5 -II



here, as explained, the evidence was not strong in each count. Consequently, this factor supports

severance.




          Second, Lischka argues that he presented three different defenses to the three charges and

contends      that because    they     are not    identical, the   jury   was   likely   confused.     But the clarity of the

defenses supports consolidation. Lischka offered no defense to the methamphetamine possession


charge and      he   admitted     that the   methamphetamine was            his.     Lischka' s defense to the charge of


harassment was that he did not act with the intent to threaten and that the State did not show that


Teitzel      experienced     reasonable      fear.     In response to the allegations of malicious mischief,


Lischka' s defense was that he did not throw the weight in anger or out of malice and that there

                                                                                7
was    reasonable         doubt   as   to Lischka' s intent that day.                Accordingly, this factor supports

consolidation because these defenses were not likely to confuse the jury, nor were they

antagonistic.          The    defenses that Lischka presented both involved                            questions   of intent.


Consequently, Lischka cannot show that he was embarrassed or confounded in presenting

separate defenses. Bythrow, 114 Wn.2d at 718 ( quoting Smith, 79 Wn.2d at 755).

          Third, in analyzing potential prejudice, we also consider whether the trial court provided

the   jury   with    instructions that they        should consider each count            separately.    Here, the trial court


did so instruct. Instruction number 7 provides,


                      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.




7
    In closing, counsel for Lischka stated that the malicious mischief charge " ha[ d] everything to
do    with intent." 2 RP at 172. Although he denied throwing the weight with malicious intent,
Lischka never offered an explanation as to what his actual intent was.


                                                                   9
Consol. Nos. 43967 -1 - II / 44007 -5 -II



Clerk' s Papers        at   20. Lischka, however, argues that this instruction alone is insufficient and that


the court should have also offered an additional limiting instruction directing the jury that

evidence of one crime could not be used to decide guilt for a separate crime and also that the


State encouraged the jury to use evidence of one crime to find guilt for another. We disagree.

           First, the record does not show that Lischka proposed an additional limiting instruction.

Second, Lischka             relies on   State       v.   Sutherby,    165 Wn.2d 870, 204 P. 3d 916 ( 2009), to support his


contentions.       But there, the charges Sutherby sought to have severed were sex crimes, and the

court cautioned          that   prejudice           is "'   particularly important in sex cases, where the potential for

prejudice    is   at   its highest. "'        Sutherby, 165 Wn.2d at 886 ( quoting State v. Coe, 101 Wn.2d 772,

780 -81, 684 P. 2d 668 ( 1984)).                      Furthermore, the Sutherby court did not hold that a trial court

must give an additional limiting instruction, only that there was not such an instruction given

which tended to tip the scale towards severance with regard to the third factor under those facts.

           Here, Lischke was not charged with a sex crime. Also, in closing, the State reminded the

jury to consider the charges separately and implored the jury specifically not to let a verdict on

one   charge      control       that   of another           charge.    Moreover, our courts have consistently approved

essentially this        same     instruction in upholding decisions                denying   severance.   State v. McDaniel,


155 Wn. App. 829, 861, 230 P. 3d 245 ( citing Bythrow, 114 Wn.2d at 723; State v. Cotten, 75

Wn.   App. 669,             688 &      n.   14, 879 P. 2d 971 (         1994),   review   denied, 126 Wn.2d 1004 ( 1995)),


review     denied, 169 Wn.2d 1027 ( 2010).                        Additionally, we presume that jurors follow the trial

court' s    instructions.           State     v.,   Lough, 125 Wn.2d 847, 864, 889 P. 2d 487 ( 1995).                That is


particularly clear where, as here, the jury found Lischka guilty on the charges where the State' s

evidence was strong and acquitted where that evidence was weak. Consequently, the third factor

also supports consolidation of the offenses for trial.

                                                                         10
Consol. Nos. 43967 -1 - II / 44007 -5 - II



          Finally, Lischka asserts that consolidation resulted in prejudice because evidence of the

possession charge and the harassment charge would not have been admissible in a trial for

malicious mischief. The State contends that evidence of the harassment would be admissible in a

separate trial for malicious mischief as that evidence would be relevant to show intent and

absence of mistake or accident, but the State also concedes that evidence of Lischka' s possession

of methamphetamine would not have been admissible in a separate trial. The State is correct that


some evidence undergirding the harassment charge would likely be admissible in a separate trial
                                                                                         8
for    malicious     mischief       to   show      intent under ER 404( b).                    Lischka' s angry comments and

emotionally charged mental state resulting from the deterioration of his relationship with Henke

was relevant       to    show   that     he did    act with malice, which                has been defined to import "          an evil




intent,   wish, or      design to    vex,   annoy,   or   injure   another person."            RCW 9A.04. 1. 10( 12).


          Moreover, even assuming the evidence that Lischka possessed methamphetamine was not
                                                                                                                   9
admissible at      the    malicious mischief         trial,   severance       is   not   necessarily   required.       Our Supreme


Court has stated unequivocally that severance is not automatically required when evidence of

one count would not           be    admissible      in   a separate   trial   on another count.         Bythrow, 114 Wn.2d at


720.     Rather, the defendant must be able to point to specific prejudice to support a finding that

the trial   court abused        its discretion in         denying     severance.             Bythrow, 114 Wn.2d        at   720.   And


      w]hen evidence concerning the other crime is limited or not admissible, our primary concern

8
    ER 404( b)   provides, "       Evidence of other crimes, wrongs, or acts is not admissible to prove the .
character of a person           in    order   to   show action           It may, however, be
                                                                      in conformity            therewith.

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."

9 Lischka only moved to sever the malicious mischief charge from both the drug possession and
harassment charges; he did not move to sever solely the drug possession charge from the
malicious mischief charge. Therefore, at least some evidence supporting Lischka' s guilt on the
other charges was cross admissible.

                                                                    11
Consol. Nos. 43967 -1 - II / 44007 -5 -II



is whether the jury can reasonably be expected to compartmentalize the evidence so that

evidence of one crime             does    not   taint the   jury' s   consideration of another crime. '           Bythrow, 114


Wn.2d      at   721 ( internal     quotation marks          omitted) (     quoting United States v. Johnson, 820 F.2d

1065, 1071 ( 9th Cir. 1987)).


         When the issues are relatively simple and the trial lasts only a couple of days, the jury can

reasonably be        expected      to    compartmentalize        the    evidence.       Bythrow, 114 Wn.2d         at   721 ( citing


United States        v.   Brady,        579 F. 2d 1121,       1128 ( 9th Cir. 1978),             cert.   denied, 439 U. S.    1074


 1979)).        Under these circumstances, there may be no prejudicial effect from consolidation even

when    the     evidence would not             have been     admissible        in   separate   trials.   Bythrow, 114 Wn.2d at


721.    The court in Bythrow concluded that it was unlikely that the jury' s knowledge of one crime

improperly influenced its determination of guilt as to the other when the trial lasted only two

days, the issue and defenses were relatively simple, and the jury was instructed to decide each

count   separately. 114 Wn.2d at 723.


           Here, the facts        are similar.        Lischka' s trial lasted only two days. The issues and defenses


were simple. Accordingly, it was reasonable to expect the jury to compartmentalize the evidence

to determine        guilt   for   each    individual     charge.      Additionally, the jury was instructed to consider

the    charges     separately,          and it ostensibly did so when it found Lischka not guilty on the

harassment charge.


           Last, any residual prejudice must be weighed against the need for judicial economy.

Russell, 125 Wn.2d           at   63.    Foremost among these concerns is a conservation ofjudicial resources

and public funds which a single trial serves by requiring only one courtroom, one judge, and one

jury.   Bythrow, 114 Wn.2d                at   723.    Here, as in Bythrow, these concerns outweigh the minimal


likelihood       of prejudice      through      consolidation         of the   charges.    Lischka fails to show otherwise.


                                                                      12
Consol. Nos. 43967 -1 - II / 44007 -5 -II



Moreover,          three of the four factors that mitigate potential prejudice applied in favor of

consolidating the       offenses      in   one   trial.   Accordingly, the trial court' s refusal to sever the charges

was not untenable or manifestly unreasonable and, therefore, was not an abuse of discretion.

                                       II. INEFFECTIVE ASSISTANCE OF COUNSEL


         In his     statement of additional grounds (                   SAG), Lischka argues that he received ineffective


assistance of counsel because his attorney violated her duty of loyalty to him and because she

failed to move to suppress the methamphetamine.


         In order to establish that counsel was ineffective, a defendant must show that counsel' s

conduct was deficient and that the deficient performance resulted in prejudice. State v. Brockob,

159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006); Strickland v. Washington, 466 U. S. 668, 691, 104


S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                     But we need not consider both prongs of Strickland if a

defendant'     s    showing     on one     prong is insufficient.              In re Pers. Restraint of Crace, 174 Wn.2d

835, 847, 280 P. 3d 1102 ( 2012). To show deficient representation, the defendant must show that


it fell below        an objective      standard of reasonableness                 based    on   all   the   circumstances.    State v.


McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).                                    The defendant must overcome a


strong   presumption           that   counsel' s performance               was   not    deficient.     State v. Reichenbach, 153


Wn.2d 126, 130, 101 P. 3d 80 ( 2004).


         Lischka' s argument that his trial counsel provided ineffective assistance by not moving to

suppress   the      methamphetamine              lacks    merit.        Lischka claims he asked his trial counsel to file a

motion    to       suppress,    but   concedes       that   his    request       does   not   appear    in the   record.     When an


ineffective assistance claim is raised on appeal, the reviewing court may consider only facts
within   the   record.     McFarland, 127 Wn.2d                    at   335.   While off the- record conversations between
                                                                                         -


Lischka and his attorney may be germane to his ineffective assistance claim, Lischka must file a
                                                                         13
Consol. Nos. 43967 -1 - II / 44007 -5 -II



personal restraint petition               if he intends to rely       on evidence outside of             the trial   record.   State v.


Grier, 171 Wn.2d 17, 29, 246 P. 3d 1260 ( 2011).


           Even were we to consider Lischka' s claim on the merits, it would fail because counsel' s


failure to move to suppress evidence does not support an ineffective assistance claim unless it

can   be   shown           that the   motion would        properly have been           granted.      State v. Price, 127 Wn. App.

193, 203, 110 P. 3d 1171 ( 2005), aff'd, 158 Wn.2d 630, 146 P. 3d 1183 ( 2006).                                       Lischka cannot


show that such a motion would have been granted because the search that revealed the

methamphetamine                 was     conducted       incident to Lischka' s         arrest   based    on probable     cause.    The


search incident to arrest exception allows officers to search the arrested person and the area

within his immediate control. State v. Patton, 167 Wn.2d 379, 390, 219 P. 3d 651 ( 2009).

            Here, the methamphetamine was found in Lischka' s pants pocket, an area that officers


are allowed           to   search     incident to   a   lawful   arrest.    We reject Lischka' s argument that because he


was acquitted of the harassment charge, all evidence gathered from the arrest for that charge is

 fruit     of   the   poisonous        tree."     Probable cause to arrest is all that is needed to support the arrest

and   the   subsequent search             incident to      arrest.   Patton, 167 Wn.2d          at   390.   It is irrelevant if he was


later    acquitted of          the    charge.     The record supports the conclusion that the officer had probable

cause to arrest him for harassment and the subsequent search was proper. No motion to suppress

this evidence would have been granted and his ineffective assistance of counsel claim fails.

            Lischka also claims that his attorney violated her duty of loyalty because she acted as an

advocate against him in refusing to attempt to suppress the methamphetamine evidence and

because         she put       on "    virtually   no    defense."    SAG     at   6.    Lischka' s contention that his counsel




                                                                       14
Consol. Nos. 43967 -1 - II / 44007 -5 -II



violated   her   duty   of   loyalty   is equally unavailing.       Demonstrating that counsel has violated her

duty of loyalty is a second method by which a defendant can pursue an ineffective assistance

claim.     Strickland, 466 U. S.        at   692.   Lischka is correct that an attorney violates the duty of

loyalty when she advocates against her client but, here, Lischka was not subject to such

treatment.


         Lischka     cites    cases    easily distinguishable from his        own.       In Osborn v. Shillinger, the


court found the duty of loyalty violated when Osborn' s counsel made statements to the press

indicating that Osborn had no evidence to support his claims and that he was playing a game to

attract attention.      861 F. 2d 612, 628. ( 10th Cir. 1988).          Other courts have found violations of the


duty of loyalty when an attorney tells a jury that there is no reasonable doubt regarding the only

factual issues that are in dispute, when a lawyer is asleep, or when he directs racial epithets

towards his      own client.     United States      v.   Swanson, 943 F.2d 1070, 1074 ( 9th Cir. 1991); Frazer


v.   United States, 18 F. 3d 778, 783 ( 9th Cir. 1994).                Here, Lischka experienced nothing of the

sort.    There was nothing his counsel could do other than minimize the impact of the

methamphetarnine possession when it was found on Lischka' s person during a lawful search and

when     Lischka    admitted      it   was   his.   Furthermore, Lischka' s counsel made pretrial motions,


opening     and   closing     arguments,      motions     in limine,   and objections      when      relevant.   Lishcka' s


counsel provided effective representation and                 did   not violate   her   duty   of   loyalty. Accordingly,

this claim also fails.




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        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.




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