                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 25, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 51173-8-II

                        Respondent,

        v.

 EDWARD MARK OLSEN,                                           UNPUBLISHED OPINION

                        Appellant.



       SUTTON J. — Edward Mark Olsen appeals the superior court’s order denying his CrR 7.8

motion for a new trial based on newly discovered evidence. He argues that pursuant to CrR

3.1(b)(2), he has a right to appointed counsel. He also argues that the rule provides him a right to

be present at his reference hearing. Lastly, Olsen argues that the superior court abused its

discretion by denying his motion for a new trial, by applying the wrong standard of review, and it

violated the appearance of fairness doctrine and the code of judicial conduct. He requests that we

remand for a new trial before a different judge. Olsen also filed a statement of additional grounds

(SAG) asserting the same claims. We affirm.
No. 51173-8-II


                                             FACTS

                                         I. BACKGROUND

A. PROCEDURAL HISTORY, TRIAL, AND APPEAL1

       This case arose out of a 2009 incident of domestic violence perpetrated by Olsen against

the mother of his children, Bonnie Devenny, in the presence of their 12-year-old son, JEO.2 Olsen

broke into Devenny’s house, poured gasoline on her while she was sleeping, and told her that she

was going to die. Police later recovered a lighter near the bed.

       The State charged Olsen with attempted first degree murder, attempted second degree

murder, first degree burglary, felony harassment, and third degree malicious mischief related to

the gasoline incident, and the felony counts included domestic violence aggravators because the

crimes occurred in the presence of the victims, Devenny and JEO. At trial, Devenny testified

consistent with the above facts. See State v. Olsen, 175 Wn. App. 269, 274-75, 309 P.3d 518

(2013). A jury convicted Olsen as charged on all counts except attempted first degree murder, and

he received an exceptional sentence.

       Olsen appealed and a panel of this court affirmed his convictions and sentence. Olsen, 175

Wn. App. at 291. Olsen petitioned for review of his exceptional sentence, and the Supreme Court

affirmed.




1
 Unless otherwise indicated, the following facts are derived from State v. Olsen, 180 Wn.2d 468,
469-72, 325 P.3d 187 (2014).
2
 JEO was a minor in 2010; therefore, we use the minor’s initials to maintain privacy. See
RCW 7.69A.030(4).


                                                 2
No. 51173-8-II


B. MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

       On January 31, 2017, Olsen, through retained counsel, filed a CrR 7.8(b)(2) motion for a

new trial based on newly discovered evidence and attached recantation affidavits of Devenny and

JEO dated January 30, 2017. In their recantation affidavits, they both stated that many of the

statements they made under oath at the trial in 2010 were not true.

       More specifically, Devenny said that Olsen had not poured gasoline on her, did not have a

lighter, and had not said anything threatening. JEO admitted that he had not seen Olsen pour

anything on Devenny, never saw a lighter, and had not heard any threats. Devenny stated that at

that time she was in a new relationship and did not want her ex-husband around to ruin things. She

explained that she made up the stuff about Olsen pouring gas, threatening her, and standing over

her with a lighter. JEO, who was 12 years old at the time of the incident, had believed Devenny’s

claims and embellished his story to support what she said had happened.

       Olsen also filed two memorandums arguing that the newly discovered evidence warranted

a new trial. The State filed a responsive memorandum arguing that the recantations were

admissible, but were not credible and thus, the new evidence did not warrant a new trial as the new

evidence would not change the outcome.

       The parties argued over whether Olsen had the right to be present at the reference hearing

and had the right to a court appointed lawyer. The superior court agreed to allow Olsen to be

transported from prison to the jail to assist his counsel. The court explained that unless Olsen’s

counsel provided the court with authority supporting his argument, Olsen would not be allowed at

be present at the reference hearing. The superior court requested briefing from Olsen’s counsel on

the issue of Olsen’s right to be present at the reference hearing. At the next court date, the issue



                                                 3
No. 51173-8-II


was addressed again and counsel stated that he could not find authority that Olsen had the right to

be present. The superior court then ruled that counsel’s presence was sufficient to represent

Olsen’s interests at the hearing.

       The reference hearing was held before the same judge who presided over the original trial.

At the reference hearing both Devenny and JEO testified. Both were examined by counsel for the

State, counsel for Olsen, and the judge. Olsen was represented by retained counsel at the reference

hearing.   The superior court requested supplemental briefing regarding the admissibility of

Devenny’s recantation testimony at a retrial and how that would affect the outcome. Both parties

filed supplemental briefing.

       On November 9, 2017, the superior court entered a written order denying the motion for a

new trial. The superior court’s order states in relevant part as follows:

                Here, both parties agree that [Devenny] and her son [JEO’s] revised
       statements recanting their trial testimony (both the declarations signed in 2017 and
       their testimony provided at the hearing on June 27, 2017) meet the requirements of
       (2)[,] (3)[,] and (4) [In re the Pers. Restraint Petition of Faircloth, 177 Wn. App.
       161, 165-66, 317 P. 3d 47 (2013)].

               The underlying facts of the case are well detailed in the State’s Response to
       CrR 7.8 Motion to Vacate, pp 2-12 which are incorporated here by this reference.
       In essence, the “newly discovered evidence” comes from statements made by both
       [Devenny] and her son, which recant their trial testimony that Mr. Olsen was
       “pouring” gas on [Devenny] as she lay in bed, that he said “Die, Bitch” as he was
       doing so, and that he appeared to have a lighter in his hand. The new statements
       indicate that Olsen came into the bedroom after [Devenny] and son fell asleep and
       that his presence startled them awake. [Devenny] says she was trying to quickly
       get out of the bed, her legs got caught up in the covers and she believes she kicked
       the gas can that Mr. Olsen was holding. The son says he was startled awake, tackled
       the intruder and did not realize it was his father until the son heard Olsen’s voice.
       [Devenny] testified at the hearing that she told her family that she had lied some
       time ago and that she decided to lie when the police contacted her because she
       wanted Olsen out of her life. Her son testified that he told the police what he heard
       his mother tell them because he was only twelve, and that between the event and



                                                 4
No. 51173-8-II


       the trial he and his mother discussed the event so much that “it became like a real
       memory” to him.

               When confronted with this type of testimony it is for the trial court to
       determine whether the original testimony of a recanting witness was perjured and,
       if so, whether the jury's verdict was likely influenced by it. State v. Macon, 128
       Wn.2d 784, 801, 911 P.2d 1004 (1996).

                It is notable that both [Devenny’s] and her son’s testimony was corroborated
       at trial by other witnesses who described her demeanor—that she was shaking and
       terrified. There were several witnesses who described the strong smell of gas in
       the bedroom, that the bed’s comforter was wet, that both [Devenny] and her son
       were taken to the fire station first for decontamination from the gas; that
       [Devenny’s] legs were red and irritated and that she also wore shorts that were wet
       and smelled of gas. Several people described her excited utterances naming her ex-
       husband as the perpetrator, that he was “pouring” gas on her, and that he said “die
       bitch, die.” Also corroborating was the fact that Olsen broke into [Devenny’s]
       home; and that there was a red gas can with a small amount of gas remaining in it
       near the foot of her bed nearest the door, and that the bathroom window screen was
       lying outside of the house—consistent with her crawling out that window
       screaming and in fear. [Devenny’s] credibility was also attacked at trial by both
       her older son and by Mr. Olsen’s mother.

              Given the substantial corroboration at trial for the initial statements made
       by both [Devenny] and her son, later testified to at trial, this Court finds that it is
       unlikely that either’s testimony at trial was perjured. Additionally, the newly
       discovered statements, if true, are not only not corroborated by the other evidence
       presented at the trial, they are not consistent with the behavior described, the
       observations from other objective witnesses, or [Devenny’s] own statements about
       the event, and do not seem reasonable in light of all the other evidence.

              The inconsistencies of the new statements, coupled with the Court’s
       observations of both witnesses’ trial testimony and their “recanting” testimony lead
       this Court to the conclusion that neither [Devenny’s] nor her son’s new statements
       are credible. This Court cannot therefore conclude that the outcome of the trial
       would probably be changed by the new statements.

Clerk’s Papers (CP) at 384-85.




                                                 5
No. 51173-8-II


        On December 8, the superior court entered findings of fact and conclusions of law which

state in relevant part:

                                         FINDINGS OF FACT

                                               I.
                That on December 21, 2010, defendant Edward Mark Olsen was convicted
        of attempted second degree murder, first degree burglary, felony harassment, and
        third degree malicious mischief each conviction including a jury finding of
        domestic violence.

                                                  II.
                That this court presided over Mr. Olsen’s trial in 2010 and that in the present
        matter this court has been provided with transcripts of the testimony in that trial,
        including transcripts of the testimony of victims Bonnie [Devenny] and her son,
        [JEO], and that this court carefully reviewed the trial transcripts and considered the
        demeanor of both witnesses during both instances of testimony in this case.

                                              III.
               That on June 27, 2017, this court held an evidentiary hearing at which this
        court heard the testimony of [Devenny] and [JEO]. (Footnote omitted).

                                                IV.
                That [Devenny] and [JEO] had testified at trial that, inter alia, late one night
        Mr. Olsen had come into the bedroom where [Devenny] and [JEO] were sleeping
        (in the same bed), had poured gasoline on the bed and on them, and had stood over
        the bed with a lighter and said to [Devenny] words to the effect of “die bitch.”

                                                  V.
                That the trial testimony of the two victims was substantially corroborated
        by the circumstances, the testimony of investigating police, and the admissible
        excited utterances of the victims, including that [Devenny] was described at the
        time as shaking and terrified, that she and [JEO] had gasoline on their skin and
        clothing, that they and the bedroom smelled strongly of gasoline, that [Devenny]
        and [JEO] had been taken to a nearby fire station in order to shower the gasoline
        off of them, that [Devenny] identified Edward Olsen as the assailant and told other
        witnesses, while shaking and terrified, that Edward Olsen was “pouring” gasoline
        on her and saying “die, bitch, die,” and that she had fled this attack by climbing out
        the bathroom window.




                                                   6
No. 51173-8-II


                                              VI.
            That this court finds no indication that the trial testimony of [Devenny] and
      [JEO] were perjured.

                                            VII.
              That the primary difference in the recantation testimony is that it was
      alleged that Edward Olsen was not pouring gasoline on them and the gasoline had
      gotten on them when [Devenny] was startled awake and kicked the gas can, that
      Edward Olsen did not say “die, bitch,” and that Edward Olsen was not holding a
      lighter. [Devenny] alleged that she had lied at trial because she wanted Edward
      Olsen out of her life.

                                               VIII.
               That this court and the parties agree that in deciding this matter, this court
      will apply the five factors used to consider newly discovered evidence, to wit, that
      the new evidence must (1) be such that it would probably change the result of the
      trial, (2) be discovered since trial, (3) not have been discoverable before trial
      through the exercise of due diligence, (4) be material and admissible, and (5) not
      be cumulative or impeaching. And that absence of any of the five factors is
      sufficient to deny a new trial. In re Faircloth, 177 Wn. App. 161, 165-66, 311 P.3d
      47 (2013).

                                             IX.
              That this court and the parties agree that items (2), (3), and (4) are
      established in that these recantations were discovered since trial, that the
      recantations did not exist at the time of trial and therefore could not have been
      discovered by the exercise of due diligence, and that the recantations address
      material matters and are admissible.

                                            X.
             That the recantation testimony is not cumulative and although it may be
      used in an impeaching manner at retrial, the recantation testimony is not merely
      impeaching.

                                             XI.
             That the newly discovered statements are not only not corroborated by the
      other evidence at trial, they are not consistent with the behavior described, the
      observations from other objective witnesses, or [Devenny’s] own testimony about
      the event, and do not seem reasonable in light of all the other evidence.




                                                7
No. 51173-8-II


                                     CONCLUSIONS OF LAW

                                             I.
               That the above-entitled Court has jurisdiction over the parties and the
       subject matter of this action.

                                                 II.
                That the recanting testimony of [Devenny] and [JEO] are not credible.

                                             III.
              That because the recanting statements are not credible, this court cannot
       conclude that those statements would probably change the result of the trial.

                                              IV.
             That therefore, as ordered in this court’s Order of November 9, 2017,
       Edward Olsen’s motion for new trial is denied.

CP at 389-92.

       Olsen appeals.

                                           ANALYSIS

                                      I. LEGAL PRINCIPLES

       CrR 7.8(b)(2) allows relief from a judgment for “[n]ewly discovered evidence which by

due diligence could not have been discovered in time to move for new trial under [CrR] 7.5.”

CrR 7.8(c)(1) states that the motion must state the grounds upon which relief is sought “and

supported by affidavits setting forth a concise statement of the facts or errors upon which the

motion is based.”

       We review a superior court’s ruling on a CrR 7.8(b) motion for an abuse of discretion.

State v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). The superior court abuses its

discretion when its decision is “manifestly unreasonable or based on untenable grounds or

reasons.” Robinson, 193 Wn. App. at 217-18.




                                                8
No. 51173-8-II


         Our review of an order denying a CrR 7.8(b) motion is limited to the record and evidence

presented at the CrR 7.8 hearing, and on appeal a defendant cannot raise issues regarding the

validity of the underlying judgment and sentence. State v. Schwab, 141 Wn. App. 85, 96-97, 167

P.3d 1225 (2007). We review whether the superior court’s denial of the motion for a new trial

based on newly discovered evidence was proper. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d

832 (2002).

                        II. RIGHT TO COUNSEL AND RIGHT TO BE PRESENT

         Olsen argues that once the superior court determined that his CrR 7.8 motion for a new

trial was not frivolous and that it would hold a hearing, he had the right to appointed counsel under

CrR 3.1(b)(2) and State v. Robinson.3 He also argues that the rule gave him the right to be present

at the hearing. He further argues that his retained counsel’s failure to cite to CrR 3.1(b)(2) or to

State v. Robinson interfered with his right to counsel.

         The State argues that Olsen never raised the issue of the right to counsel below and Olsen

was represented by retained counsel who filed the motion for a new trial and also represented him

at the hearing. The State also argues that Olsen does not have the right to be present under CrR

3.1(b)(2), and the superior court properly declined to allow him to be present but allowed him to

be transported from prison to assist his counsel. We agree with the State.

         CrR 3.1(b)(2) provides:

         A lawyer shall be provided at every stage of the proceedings, including sentencing,
         appeal, and post-conviction review. A lawyer initially appointed shall continue to
         represent the defendant through all stages of the proceedings unless a new
         appointment is made by the court following withdrawal of the original lawyer



3
    153 Wn.2d 689, 696, 107 P.3d 90 (2005).


                                                 9
No. 51173-8-II


       pursuant to section (e) because geographical considerations or other factors make
       it necessary.

       “Because the asserted error is a violation of a court rule (rather than a constitutional

violation), it is governed by the harmless error test.” State v. Robinson, 153 Wn.2d at 697.

Reversal is appropriate under the harmless error test only if the error was prejudicial, in that, within

reasonable probabilities, if the error had not occurred, the outcome of the motion for relief would

have been materially affected. Robinson, 153 Wn.2d at 697.

       Here, Olsen concedes that he has no right to appointed counsel at a post-conviction hearing

under either the federal or state constitutions. He also concedes that a post-conviction proceeding

is not a critical phase of the proceedings. Olsen argues he had a rule-based right to appointed

counsel at the hearing; however, he was represented by retained counsel at the hearing. Thus,

there is no violation of CrR 3.1(b)(2).

       Olsen argues that CrR 3.1(b)(2) provides him a right to be present at the hearing; however,

the rule does not provide him such a right. Further, he does not show prejudice by his failing to

be present at the hearing.

       Because Olsen had a retained lawyer at the reference hearing to assist him, and he fails to

show a rule violation or prejudice, we hold that his claim of a CrR 3.1(b)(2) violation fails.

                                III. APPLICABLE LEGAL STANDARD

       Olsen argues that a new hearing is warranted because the superior court abused its

discretion by applying the wrong legal standard when it concluded that the outcome of the trial




                                                  10
No. 51173-8-II


would probably not have been changed by the recantation testimony. We hold that the superior

court applied the correct legal standard, and thus, Olsen’s claim fails. 4

       We review a superior court’s application of the law to the facts de novo. State v. Corona,

164 Wn. App. 76, 79, 261 P.3d 680 (2011). We review a superior court’s ruling on a CrR 7.8(b)

motion for an abuse of discretion. Robinson, 193 Wn. App. at 217. The superior court abuses its

discretion when its decision is “manifestly unreasonable or based on untenable grounds or

reasons.” Robinson, 193 Wn. App. at 217-18.

       State v. Macon is the seminal case in Washington on granting a new trial based on newly

discovered evidence. 128 Wn.2d 784, 911 P.2d 1004 (1996). The Macon court stated,

       To obtain a new trial based upon newly discovered evidence, a defendant must
       prove that the evidence: (1) will probably change the result of the trial; (2) was
       discovered after the trial; (3) could not have been discovered before trial by the
       exercise of due diligence; (4) is material; and (5) is not merely cumulative or
       impeaching.

128 Wn.2d at 800. The “[a]bsence of any of the five factors is sufficient to deny a new trial.” In

re Faircloth, 177 Wn. App. at 166.

       The superior court must make a threshold determination of the reliability of the recantation

testimony. Macon, 128 Wn.2d at 804. In making that reliability determination, the court may

consider the circumstances surrounding the case, including the recanting witness’s age, possible

reasons for recanting, relevant facts at the time of recantation, and the time between the testimony

and the recantation. Macon, 128 Wn.2d at 802. The existence of independent corroborating

evidence supporting the recanting witness’s original testimony is not a controlling factor. Macon,



4
  Olsen also raises this same issue in his SAG. For the same reasons explained here, his SAG
argument also fails.


                                                 11
No. 51173-8-II


128 Wn.2d at 804. The question is whether a reasonable juror would find the recantation reliable,

given the circumstances under which it was made. See Macon, 128 Wn.2d at 800. “When

determining whether the newly discovered evidence will probably change the result of trial, we do

not consider what effect the newly discovered evidence may have on the defendant’s case, but

rather we weigh the newly discovered evidence against the strength of the State’s evidence.” In

re Faircloth, 177 Wn. App. at 167-68 (citing State v. Peele, 67 Wn.2d 724, 732, 409 P.2d 663

(1966)).

        The superior court, not the jury, determines the credibility of the recanting witness. See

State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997) (superior court makes own credibility

determination without regard to whether a jury might find the witness credible). If the testimony

of the recanting witness is the “sole” evidence establishing guilt and the superior court finds the

recantation credible, it is an abuse of discretion to deny the motion. See In re Pers. Restraint of

Clements, 125 Wn. App. 634, 641-42, 106 P.3d 244 (2005).

        However, if the superior court determines that the recantation is unreliable and denies the

motion for new trial, there is no abuse of discretion. State v. Gassman, 160 Wn. App. 600, 609,

248 P.3d 155 (2011). Since “[r]ecantation testimony is inherently questionable” and “does not

necessarily, or as a matter of law, entitle the defendant to a new trial,” a determination of the issues

lies within the sound discretion of the superior court. Macon, 128 Wn.2d at 801. Further, when

reviewing the superior court’s factual findings, we consider only whether substantial evidence

supports them and, if so, whether they support the court’s conclusions of law. Macon, 128 Wn.2d

at 799. “Unchallenged findings of fact are verities on appeal.” State v. Rankin, 151 Wn.2d 689,

709, 92 P.3d 202 (2004). As with all credibility determinations, if the superior court bases its



                                                  12
No. 51173-8-II


decision on a determination of credibility, we do not disturb that finding on appeal. See Morse v.

Antonellis, 149 Wn.2d 572, 574-75, 70 P.3d 125 (2003) (credibility determinations are solely for

the trier of fact).

          Olsen argues that if the superior court had applied the correct legal standard, it would have

found the recantation testimony to be credible and that the newly discovered evidence would

“likely affect the verdict” because the only evidence supporting the attempted murder and felony

harassment crimes was the “pouring gasoline on and threatening to kill Bonnie Devenny.” Br. of

App. at 42 (quoting Olsen, 175 Wn. App. at 173-74).

          Olsen further argues5 that the superior court applied the wrong legal standard by failing to

consider the following relevant factors related to JEO’s testimony: (1) JEO’s youthfulness at the

time as he was 12 at the time of the incident and 13 at trial; (2) JEO’s “vulnerabilities of youth;”

(3) the pressure from family members who did not believe the initial accusations; (4) JEO’s trial

testimony that his “instinct” was to protect his mother who he was living with at the time; and (5)

JEO’s trial testimony that it was very dark, and he “couldn’t see much,” but still maintained he

could see the intruder pouring gas and the color of the gas can, and he was present when his mother

talked to the policed officer before he was interviewed. Br. of Appellant at 35-36.

          Olsen also argues that the superior court failed to consider the following factors related to

Devenny’s testimony: (1) she was not involved with Olsen and had not been for many years and

was not under his influence at the time she recanted; (2) there was no evidence she had any motive

or pressure to recant; (3) the recantations only addressed the second degree attempted murder




5
    Olsen assigned error to the superior court’s finding of fact XI and conclusion of law II.


                                                   13
No. 51173-8-II


conviction, not Olsen’s other convictions; and (4) there was no other evidence other than the

recanted evidence to support the felony harassment conviction based on Olsen’s “die, bitch,”

comment at the time, overheard by JEO, which she had to reasonably believe would be carried out

by him at the time. Br. of Appellant at 39, 41.

       But we do not review credibility determinations. State v. Cross, 156 Wn. App. 568, 581,

234 P.3d 288 (2010). We limit our review to whether the recantation findings support the superior

court’s conclusions, and as explained below, we hold that the findings support the court’s

conclusion, and the superior court did not err.

       Regarding JEO’s age at trial, Olsen cites Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455,

183 L. Ed. 2d 407 (2012) and State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3 409 (2017).

However, he fails to explain how youthful factors considered at sentencing apply to a youth who

recants his earlier trial testimony. Thus, the superior court did not err in this regard.

       As to Devenny’s recantation testimony, Olsen concedes that Devenny’s excited utterances

made on the day of the incident are admissible as substantive evidence of his guilt under ER

801(d)(1). The State summarized her statements as follows:

       These statements include that Olsen was in the house unannounced. Each statement
       includes that [Devenny and JEO] were awoken to this unannounced intruder
       pouring gasoline on the bed in which they had only moments before been sleeping.
       Each statement included threatening statements by the assailant. [Devenny] was
       reasonably certain that Olsen had a lighter when he was pouring and threatening.
       Police found the lighter next to the bed and [Devenny] testified that she had not put
       it there – she was “positive” that it was not there before Olsen came into the
       bedroom.

              There is no doubt in this record that [she] had a lot of gasoline on her. She
       can be heard on the 911 call saying, “I’m burning, I’m burning.”

CP at 228.



                                                  14
No. 51173-8-II


       In response to the motion for a new trial, the State argued:

       If [Devenny] testifies [at a retrial], she will be subject to cross examination
       concerning her original testimony. That original testimony is inconsistent [with her
       recanted testimony] and was given under oath in the prior trial. Thus, as not
       hearsay, her prior inconsistent statements are also admissible as substantive
       evidence of Olsen’s guilt [under ER 801]. . . . [S]hould [she] be “unavailable” as
       defined by ER 804(a), the former testimony would be admissible under ER
       804(b)(1).

CP at 311-12. We agree with the State that Devenny’s prior, recanted testimony would be

admissible upon retrial.

       We determine that the findings support the superior court’s conclusion of law “[t]hat

because the recanting statements are not credible, this court cannot conclude that those statements

would probably change the result of the trial.” CP at 391-92. Because the recantation testimony

was not credible and would not have probably changed the outcome of a retrial, the superior court’s

order denying the motion for a new trial was neither untenable nor unreasonable. Accordingly,

we hold that the superior court did not abuse its discretion and we affirm the superior court’s order.

                                  IV. APPEARANCE OF FAIRNESS

       Olsen argues that the superior judge violated the appearance of fairness and the relevant

code of judicial conduct by the nature and tone of her questioning of Devenny and JEO at the

hearing on his motion. We disagree and hold that the superior court did not violate the appearance

of fairness. We decline to consider whether the superior court violated the code of judicial conduct

because Olsen fails to adequately brief this claim.




                                                 15
No. 51173-8-II


       Criminal defendants have a due process right to a fair trial by an impartial judge. WASH.

CONST. art. I, § 22; U.S. CONST. amends. VI, XIV. Impartial means the absence of actual or

apparent bias. See State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). “‘The law goes

farther than requiring an impartial judge; it also requires that the judge appear to be impartial.’”

State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8

Wn. App. 61, 70, 504 P.2d 1156 (1972)).

       The test for determining “whether a judge should disqualify himself where his impartiality

might reasonably be questioned is an objective one.” State v. Leon, 133 Wn. App. 810, 812, 138

P.3d 159 (2006). A court must determine “whether a reasonably prudent and disinterested

observer would conclude [the defendant] obtained a fair, impartial, and neutral trial.” State v.

Dominguez, 81 Wn. App. 325, 330, 914 P.2d 141 (1996). But “[w]ithout evidence of actual or

potential bias, an appearance of fairness claim cannot succeed and is without merit.” Post, 118

Wn.2d at 619. Further, a defendant who has reason to believe that a judge should be disqualified

must act promptly to request recusal and “cannot wait until he has received an adverse ruling and

then move for disqualification.” State v. Carlson, 66 Wn. App. 909, 917, 833 P.2d 463 (1992).

       ER 614(b) provides that

       [t]he court may interrogate witnesses, whether called by itself or by a party;
       provided, however, that in trials before a jury, the court’s questioning must be
       cautiously guarded so as not to constitute a comment on the evidence.

       Olsen argues that the superior court’s own questioning of Devenny and JEO was improper

due to the manner and phrasing of questions, the similarity to cross examination, and tone attacking

the witnesses’ veracity. Olsen points to several examples during the hearing, and admits he did

not object at the time. He cites to the judge’s questions to Devenny, asking Devenny why a



                                                16
No. 51173-8-II


stranger would be in her home with a gas can in hand. Olsen claims that the judge confronted

Devenny by asking if she colluded with JEO, and the judge also questioned JEO’s “reality” and

ability to remember, asking, “Is that still your truth?” VRP (June 27, 2017) at 50-52. The judge

further asked JEO if he had talked to his dad about the incident.

       Olsen takes issue with the nature of the questions asked, the follow-up by the superior

court, and the manner of her questions. Olsen ignores that ER 614(b) allows for interrogation by

the court as long as the questioning does not constitute a comment on the evidence before the jury.

Here there was no jury present. Thus, the superior court’s examination of Devenny and JEO was

authorized under the rules of evidence. Because Olsen fails to show how the superior court was

biased and because the court’s findings do not suggest a lack of impartiality, we hold that Olsen’s

claim that the appearance of fairness doctrine was violated fails.

       Olsen also argues that the superior court violated the relevant code of judicial conduct.

Olsen fails to adequately brief this issue. We do not consider inadequately briefed argument. RAP

10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)

(argument unsupported by citation to the record or authority will not be considered). Because

Hopwood inadequately briefed this issue, we decline to consider his claim.




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                                          CONCLUSION

        We hold that the superior court did not abuse its discretion in denying Olsen’s motion for

a new trial and affirm the superior court’s order.

        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.



                                                      SUTTON, J.
 We concur:



 MELNICK, P.J.




 GLASGOW, J.




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