                                                                        FILED
                                                                COURT OF APPEP,LS RV I
                                                                 STATE OF WASHINGTON

                                                                 2011 JU I 12 An 9: J4




 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                            )
                                                 )        No. 74853-0-1
                      Respondent,                )
                                                 )        DIVISION ONE
               v.                                )
                                                 )        UNPUBLISHED OPINION
 JOHN LEELAND HALE,                              )
                                                 )
                      Appellant.                 )        FILED: June 12, 2017
                                                 )
       APPELWICK, J. — Hale was convicted of one count of domestic violence

felony violation of a court order. He argues that the trial court erred in denying his

motion to sever charges. He contends counsel's failure to renew this motion

constituted ineffective assistance. We affirm.

                                       FACTS

       John Hale was charged with four counts of domestic violence felony

violation of a court order. Count one pertained to a January 13,2014 violation,

count two to a March 6, 2014 violation, count three to a May 6, 2015 violation, and

count 4 to a May 11, 2015 violation.

       Hale moved to sever the charges. He asked that count one and count two

be severed from each other and from the other offenses. Hale grouped counts

three and four together in the motion to sever.
No. 74853-0-1/2


       Before the court could decide the motion to sever, the State moved to

dismiss count one. The court granted the motion to dismiss count one.

       The court heard argument on the motion to sever count two from counts

three and four. Hale argued that the State's case on counts three and four was

much stronger than its case on count two. Hale contended that the danger with

trying count two with the other counts was that the jury could infer from the strong

evidence on counts three and four that Hale also committed the acts charged in

count two. The trial court denied the motion to sever, because all three counts

involved a similar course of conduct, and there would be no undue prejudice to

'Hale by trying them together.

       The State amended the information to dismiss count two. Consequently,

the May 6, 2015 violation became count one, and the May 11, 2015 violation

became count two.1

       Hale did not again move to sever. The case went to trial. The jury found

Hale guilty on count one, but could not reach a unanimous decision on count two.

The State decided not to re-try count two, and the court dismissed the count. Hale

appeals his conviction on count one.




      1 For the remainder of this opinion, we refer to the counts that went to trial
as counts one and two, except when discussing Hale's motion to sever, which was
made before the first two counts were dismissed.


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No. 74853-0-1/3


                                     DISCUSSION

       Hale argues that the trial court abused its discretion in denying his motion

to sever the charges. He asserts that counsel's failure to renew the motion was

ineffective assistance of counsel.

  I.   Motion to Sever

       We review a trial court's decision on a motion to sever charges for a

manifest abuse of discretion. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d

1064 (1993). The defendant bears the burden of demonstrating that the court

abused its discretion in refusing to sever charges. State v. Russell, 125 Wn.2d 24,

63, 882 P.2d 747(1994).

       CrR 4.3(a) permits two or more offenses of a similar nature to be joined in

a single trial. But, a defendant may move to sever offenses joined under CrR

4.3(a). CrR 4.4(a). A defendant seeking to sever offenses has the burden of

demonstrating that a trial involving all counts would be so manifestly prejudicial as

to outweigh the concern for judicial economy. State v. Huynh, 175 Wn. App. 896,

908, 307 P.3d 788 (2013). Under CrR 4.4(a), a defendant must move to sever

offenses before trial, unless the interests of justice require otherwise. If the

defendant's pretrial motion for severance was overruled, the defendant must

renew the motion before or at the close of evidence. CrR 4.4(a)(2). The defendant

waives severance by failing to renew the motion. Id.

       In his motion to sever, Hale argued that counts one and two should be

severed from each other and from the other two counts. He did not argue that




                                             3
No. 74853-0-1/4


counts three and four, the ones that went to trial, should be severed from each

other. At oral argument on the motion, Hale explicitly acknowledged that the

State's case on count two was weaker than the case for counts three and four.

Hale argued that because the jury might use evidence from counts three and four

to infer guilt on count two, the court should sever count two from counts three and

four. The motion was denied, and Hale never renewed any motion to sever.

       We conclude that Hale has waived this severance argument. Below, Hale

did not argue that the counts that ultimately went to trial should be severed from

each other. He did not renew any motion to sever before or at the close of

evidence. We therefore decline to address this argument.

 II.   Ineffective Assistance of Counsel

       Hale also argues that counsel's failure to renew the motion to sever

constituted ineffective assistance of counse1.2 He contends that there was no

strategic reason not to renew the motion, and that the outcome of separate trials

would have been different.

       To demonstrate ineffective assistance of counsel, a defendant must show

both that defense counsel's performance was deficient and that this deficient

representation was prejudicial. State v. McFarland, 127 Wn.2d 322, 334-35, 899

P.2d 1251 (1995). We presume counsel's representation was effective. Id. at 335.


       2 Hale  does not explicitly argue that counsel's initial failure to move to sever
the charges that ultimately went to trial constituted ineffective assistance of
counsel. But, given our conclusion that the failure to make the motion waived the
severance argument on appeal, we interpret Hale's ineffective assistance
argument as assigning error to counsel's failure to make the proper motion as well
as the failure to renew the motion.


                                              4
No. 74853-0-1/5


       To establish that counsel was ineffective by failing to move to sever

charges, Hale must first establish that a severance motion would likely have been

granted. State v. Sutherby, 165 Wn.2d 870, 884, 204 P.3d 916 (2009). Then, he

must demonstrate that, had severance been granted, there is a reasonable

probability that the outcome of separate trials would have been different. See id.

at 884. In deciding whether to sever charges to avoid prejudice, a court looks at

"(1) the strength of the State's evidence on each count;(2) the clarity of defenses

as to each count; (3) court instructions to the jury to consider each count

separately; and (4) the admissibility of evidence of the other charges even if not

joined for trial." Russell, 125 Wn.2d at 63.

       Here, Hale argues that severance would have been granted, because the

State's evidence was stronger on count one than on count two, his defenses on

the two counts were different, and evidence of one count would not have been

admissible at a separate trial on the other count. The implication from this

argument is that the jury could have used evidence from count one, the stronger

case, to find guilt or infer a criminal disposition on count two, the weaker case.

See id. at 62-63 (noting that joinder may relate in prejudice if a single trial invites

the jury to cumulate evidence to find guilt or infer a criminal disposition). Under

this argument, joinder of the charges could have prejudiced Hale's right to a fair

trial on count two.

       But, the jury could not reach a unanimous verdict on count two. This count

was ultimately dismissed. Hale was convicted on only count one, the count for




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No. 74853-0-1/6


which he concedes the State's evidence was strong. Any error in failing to move

to sever or renew such a motion was not prejudicial, because Hale was not

convicted of the count for which joinder could have prejudiced him. Therefore,

Hale cannot meet his burden to establish ineffective assistance of counsel.

      We affirm.




WE CONCUR:
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