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

THE STATE OF WASHINGTON,                          )         No. 78231-2-I
                                                  )
                             Respondent,          )
                                                  )
                    v.                            )         UNPUBLISHED OPINION
                                                  )
HAROLD JOHN MURPHY,                               )
                                                  )
                             Appellant.           )

      BOWMAN, J. — Harold John Murphy raises several issues on appeal of his

multiple convictions stemming from a bank fraud scheme. We conclude

Murphy’s claims have no merit, and affirm.

                                             FACTS

      The State charged Murphy with one count of attempted theft in the first

degree and one count of assault in the second degree with firearm

enhancements for each. The State also charged Murphy with unlawful

possession of a firearm (UPFA) in the first degree. By amended information, the

State added three counts of attempted theft in the first degree. The charges

stemmed from a “bank lick”1 operation; a bank fraud scheme involving deposits

of worthless checks into an account and withdrawals from the account of


      1   Also known as “bank liq” or “bank liquidation.”


     Citations and pin cites are based on the Westlaw online version of the cited material.
No. 78231-2-I/2


provisional funds before the bank discovers the deception. Murphy attempted to

perpetrate three sets of bank licks targeting Boeing Employees Credit Union

(BECU).

       In June 2016, Murphy met Samantha Tinoco and her friend Taya Sneed

and recruited them to work for him. Murphy told Sneed he wanted to hire her to

promote him as a rapper. Tinoco thought she would be working as a model for

Murphy’s rap videos. Murphy told the women he would pay them in advance but

first they needed to deposit checks in their BECU accounts because his account

was “full.”

       Sneed testified Murphy told her that “they weren’t able to get their money,

so they put those checks in our name so that we could get it for them, and were

also saying that it’s going to, like, turn into ours.” Tinoco and Sneed also gave

Murphy their debit cards and PINs.2 Murphy claimed he needed the debit cards

“because he was doing a show” in Portland, Oregon.

       Murphy and a friend showed the women an “envelope full of” checks. The

checks were from businesses like Seattle City Light and Aerotek and made

payable to Tinoco and Sneed. Murphy drove the women to several BECU

branches to deposit the checks and withdraw the cash for him. While in

Murphy’s car, both Sneed and Tinoco saw a gun in the glove compartment.

When Sneed asked about the gun, Murphy said he “[o]nly uses it when he needs

it.”




       2   Personal identification numbers.


                                              2
No. 78231-2-I/3


       Between June 10 and 13, Tinoco deposited four checks, immediately

withdrew the cash, and gave it to Murphy. Sneed attempted to deposit checks

on three occasions. On the third attempt, the teller refused the transaction

because too much money had gone through Sneed’s account. Later that day,

Sneed and Tinoco spoke with a friend who alerted them to the fraudulent

scheme. Sneed and Tinoco went to BECU to report the fraud on June 13. By

that time, Sneed had deposited and withdrawn almost $5,000 for Murphy.

Tinoco had deposited and withdrawn nearly $9,800.

       Celeste Barker-Henry testified about her role in a similar incident around

the same time. Barker-Henry was experiencing financial troubles and Murphy

and his friend told her they could help. They sat in Murphy’s car in a parking lot

and Murphy offered to write her a check for the money she needed. Barker-

Henry gave Murphy her debit card and PIN. While she was in Murphy’s car,

Barker-Henry saw a gun in the center console.

       The next day on June 15, Murphy gave Barker-Henry a check from

Swedish Hospital made payable to her. He told her to deposit the check in her

BECU account. Murphy explained that he would withdraw some of the money

and leave the amount she needed in her account. When Barker-Henry

attempted to deposit the check, the teller informed her the check was “fake.” A

bank security employee told Barker-Henry to return the next day to discuss the

incident. When Barker-Henry left BECU approximately 20 minutes after she

entered the bank, Murphy was gone.




                                         3
No. 78231-2-I/4


      Barker-Henry returned to BECU the next day as instructed. The BECU

fraud investigator showed her evidence that Murphy had used her debit card to

deposit a fraudulent check at an ATM3 and withdraw cash. A month later,

Barker-Henry met with King County Sheriff’s Detective Robin Fry and identified

Murphy from a photomontage.

      Murphy’s younger cousin Rolazja Stewart-Satterwhite also testified about

her involvement in his scheme. On June 30, Stewart-Satterwhite and her cousin

Alysha Stevens4 met Murphy, who told Stewart-Satterwhite she needed to go

into a bank to deposit a check for him. Stewart-Satterwhite refused, but Murphy

took a gun from the glove compartment of his car and pressed the barrel into her

side. At that point, Stewart-Satterwhite agreed. At Murphy’s direction, Stevens

then drove Stewart-Satterwhite to a BECU branch in his car.

      Initially, Stewart-Satterwhite attempted to deposit the check at the drive-

through teller. The teller told them the large amount of the check required

deposit inside the bank. Stewart-Satterwhite texted this information to Murphy,

who told her to “remain calm” and delete their messages. When Stewart-

Satterwhite and Stevens went into the bank, they were escorted into an office to

speak with two BECU employees, including financial crime investigator Trichell

Avaava. Eventually, Stewart-Satterwhite explained the situation.

      Stewart-Satterwhite was worried about returning to Murphy without the

cash. In response, Avaava enacted a plan. Avaava wrote Stewart-Satterwhite a




      3   Automated teller machine.
      4   Stevens and Murphy are not related.


                                                4
No. 78231-2-I/5


false receipt that showed the deposit was pending in her account and would be

available after the upcoming July 4 holiday. Stewart-Satterwhite showed the

receipt to Murphy and told him that BECU wanted her to go into the branch after

July 4 to sign for the large amount of money. Murphy told Stewart-Satterwhite to

comply.

       On July 7, the day the money was supposed to be available, Stewart-

Satterwhite was with Detective Fry and exchanged messages with Murphy.

When Murphy met Stewart-Satterwhite to pick up his money, officers arrested

him.

       The State charged Murphy with one count of attempted theft in the first

degree and assault in the second degree with firearm enhancements related to

the incident involving Stewart-Satterwhite. The State charged him with three

additional counts of attempted theft in the first degree stemming from the

activities with Tinoco, Sneed, and Barker-Henry. Due to his criminal history, the

State also charged Murphy with UPFA in the first degree. A jury convicted

Murphy as charged. With an offender score of 10, the court imposed a

concurrent high-end standard-range sentence of 170 months of confinement.

                                    ANALYSIS

Severance

       Murphy argues the trial court erred when it denied his motion to sever the

UPFA charge from the other five charged crimes. The State contends Murphy

waived his right to appeal this issue and failed to demonstrate specific prejudice




                                         5
No. 78231-2-I/6


requiring separate trials. We conclude that Murphy did not waive his right to

challenge the court’s ruling and the court did not err in denying his motion.

       Waiver

       The State claims Murphy waived his right to challenge severance

“because he did not renew [the motion to sever] before or at the close of the

evidence.” Under CrR 4.4(a)(1),

       [a] defendant’s motion for severance of offenses . . . must be made
       before trial, except that a motion for severance may be made
       before or at the close of all the evidence if the interests of justice
       require. Severance is waived if the motion is not made at the
       appropriate time.

If the trial court denies a pretrial severance motion, the defendant may renew the

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

pretrial motion results in waiver. CrR 4.4(a)(2).

       Here, Murphy did not make a pretrial motion to sever. He made his

motion to sever the UPFA charge during jury selection. A motion to sever made

on the morning of the trial is not a motion made “before trial” under CrR 4.4(a)(1).

State v. Hernandez, 58 Wn. App. 793, 797, 794 P.2d 1327 (1990); State v.

Harris, 36 Wn. App. 746, 748-49, 677 P.2d 202 (1984). Because Murphy moved

for severance at trial, he did not need to renew his motion to prevent waiver.

       Prejudice

       We review a trial court’s refusal to sever counts for manifest abuse of

discretion. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). “To

show that the trial court abused its discretion in denying severance, ‘the




                                         6
No. 78231-2-I/7


defendant must be able to point to specific prejudice.’ ” State v. Huynh, 175 Wn.

App. 896, 908, 307 P.3d 788 (2013) (quoting Bythrow, 114 Wn.2d at 720).

       “ ‘Severance’ refers to dividing joined offenses into separate charging

documents.” State v. Bluford, 188 Wn.2d 298, 306, 393 P.3d 1219 (2017); see

CrR 4.4(b). On a motion by either party, the court may sever offenses if it

“determines that severance will promote a fair determination of the defendant’s

guilt or innocence of each offense.” CrR 4.4(b); Bluford, 188 Wn.2d at 306.

       Washington disfavors separate trials. State v. Medina, 112 Wn. App. 40,

52, 48 P.3d 1005 (2002). “Defendants seeking severance have the burden of

demonstrating that a trial involving both counts would be so manifestly prejudicial

as to outweigh the concern for judicial economy.” Bythrow, 114 Wn.2d at 718. In

assessing whether severance is appropriate, the trial court considers

       (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.

State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).

       Here, the factors support the trial court’s decision. The State had

compelling evidence on each of the counts. Each of the women Murphy induced

to participate in the fraud testified about Murphy’s orchestration of the schemes

and that he kept a firearm in his vehicle. Stewart-Satterwhite testified in detail

about Murphy forcing her to participate in the fraud at gunpoint. Murphy

employed a “general denial” defense for all charges. And, as the trial court

noted, the “vast majority” of the evidence was cross admissible.




                                          7
No. 78231-2-I/8


        Murphy contends that evidence of his prior felony conviction in support of

the UPFA charge was not cross admissible and resulted in undue prejudice.

However, even where evidence of one count would not be admissible in a

separate trial on the other counts, severance is not necessarily required. See

Bythrow, 114 Wn.2d at 720. The defendant must “point to specific prejudice.”

Bythrow, 114 Wn.2d at 720 (citing State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d

6 (1982)).

        Murphy fails to point to specific prejudice. The parties stipulated to

identifying Murphy’s prior conviction as a “generic” “serious offense,” eliminating

the potential prejudice from introduction of the specifics of his prior conviction.

The trial court also explicitly instructed the jury to use the evidence of the prior

conviction solely for the limited purpose of the UPFA charge and not “for any

other purpose.” Finally, the trial court instructed the jury to “decide each count

separately” and that their verdict on one count “should not control” their verdict

“on any other count.” We presume the jury follows the court’s instructions. State

v. Emery, 174 Wn.2d 741, 754, 278 P.3d 653 (2012).

        Murphy fails to demonstrate that he was manifestly prejudiced by the trial

court’s failure to sever his UPFA charge from the other charges. The trial court

did not abuse its discretion.5




        5 Murphy also claims the trial court erred in failing to bifurcate the UPFA charge. We

review a trial court’s decision on bifurcation for abuse of discretion. State v. Roswell, 165 Wn.2d
186, 192, 196 P.3d 705 (2008). Because Murphy is unable to show prejudice, the court did not
abuse its discretion.


                                                 8
No. 78231-2-I/9


Prosecutorial Misconduct

       Murphy claims the prosecutor committed misconduct by improperly

commenting on his constitutional right to remain silent. According to Murphy, the

prosecutor emphasized that he invoked his right to silence and contrasted his

silence with the cooperating witnesses who spoke freely with the police. We

disagree.

       To establish prosecutorial misconduct, a defendant must demonstrate that

the conduct was both improper and prejudicial in the context of the entirety of the

record and the circumstances at trial. State v. Magers, 164 Wn.2d 174, 191, 189

P.3d 126 (2008). Where, as here, the defendant fails to object at trial, he waives

the error absent misconduct so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice. Emery, 174 Wn.2d at 760-61. To

demonstrate this level of misconduct, the defendant must show “(1) ‘no curative

instruction would have obviated any prejudicial effect on the jury’ and (2) the

misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the

jury verdict.’ ” Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172

Wn.2d 438, 455, 258 P.3d 43 (2011)).

       A defendant’s exercise of his Fifth Amendment right to silence may not be

introduced at trial as substantive evidence of guilt. U.S. CONST. amend V; State

v. Gauthier, 174 Wn. App. 257, 264, 298 P.3d 126 (2013). “A comment on an

accused’s silence occurs when [the invocation is] used to the State’s advantage

either as substantive evidence of guilt or to suggest to the jury that the silence




                                          9
No. 78231-2-I/10


was an admission of guilt.” State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235

(1996).

        Detective Fry testified that she advised Murphy of his constitutional rights

using a standardized “Explanation of My Constitutional Rights” form that she read

aloud as Murphy followed along. The form includes the right to remain silent.

Murphy acknowledged that he understood his rights and signed the form.

Detective Fry then read Murphy the waiver of constitutional rights section of the

form. The waiver section states:

        “I have read the above explanation of my constitutional rights, and I
        understand them. I have decided not to exercise these rights at
        this time. The following statement is made by me freely and
        voluntarily, without threats or promise of any kind.”

Murphy then “provided some details” of the incidents.6 Detective Fry asked

Murphy if “he wanted me to document that, that it could be recorded or taped.”

Murphy declined. Detective Fry testified that Murphy did not provide additional

details.

        Murphy contends the prosecutor contrasted his choice not to give

additional details with the choice of other witnesses to talk freely with the police.

Murphy misconstrues the evidence. Of the witnesses, only Stewart-Satterwhite

was advised of her Miranda7 warnings. At the time, she was a suspect in

criminal activity. Detective Fry testified she advised Stewart-Satterwhite of her

constitutional rights and she waived those rights and agreed to speak to




        6Murphy stated Stewart-Satterwhite was “a friend” and insisted he was not involved in
the deposit with BECU and did not have a gun.
        7   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                 10
No. 78231-2-I/11


Detective Fry. The record does not show that Sneed, Tinoco, or Barker-Henry

ever received Miranda warnings. There is no support for Murphy’s claim that the

prosecutor’s use of the statements from any of these witnesses inherently

emphasized Murphy’s decision not to elaborate on his statement.

      Furthermore, neither Detective Fry nor the prosecutor emphasized

Murphy’s choice not to give further details or have his statement recorded.

Detective Fry described her interaction with Murphy and his answers to her

questions. She also explained that he declined to have his statement recorded

and did not provide further details. There was no attempt to use the evidence to

imply consciousness of guilt. Murphy’s claim of prosecutorial misconduct fails.

Ineffective Assistance of Counsel

      Murphy raises several grounds for ineffective assistance of counsel, all

stemming from defense counsel’s failure to raise various objections. To prove

ineffective assistance of counsel based on failure to object, a defendant must

show that not objecting “fell below prevailing professional norms, that the

proposed objection would likely have been sustained, and that the result of the

trial would have been different if the evidence had not been admitted.” In re

Pers. Restraint Petition of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).8

Courts engage in a strong presumption of effective representation. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). For a successful claim

of ineffective assistance of counsel, a defendant must establish both objectively

deficient performance and resulting prejudice. Emery, 174 Wn.2d at 754-55.



      8   Footnotes omitted.


                                        11
No. 78231-2-I/12


       Failure To Object to Leading Questions

       Murphy claims his counsel failed to object to leading questions by the

prosecutor. However, Murphy does not provide specific examples of improper

questions. His citations to the record span dozens of pages of the trial transcript.

As a result, Murphy’s briefing does not satisfy RAP 10.3(a)(6) requiring

“references to relevant parts of the record.” We decline to search the broad

citations to the record for evidence of leading questions. See State v.

Brousseau, 172 Wn.2d 331, 353, 259 P.3d 209 (2011).

       Failure To Object to Comment on Silence

       Murphy also alleges ineffective assistance because his attorney did not

object to the prosecutor’s alleged comment on his right to remain silent. As

discussed above, the prosecutor did not improperly comment on Murphy’s

silence. No objection was required and counsel was not deficient.

       Additional Claims

       Murphy makes several allegations of ineffective assistance due to his

attorney’s failure to object but neglects to include legal analysis as required by

RAP 10.3(a)(6). For example, he contends counsel did not object when the

prosecutor made statements during closing argument that were inconsistent with

the jury instruction about intent and possession of a firearm. However, Murphy

provides no analysis of this alleged error. Similarly, Murphy also claims counsel

did not object to irrelevant expert testimony but fails to explain why admission of

the evidence was erroneous and prejudicial. Because Murphy does not comply

with RAP 10.3(a)(6), we decline to address these allegations.




                                         12
No. 78231-2-I/13


Cumulative Error

        Murphy argues the cumulative errors of denying his motion to sever,

prosecutorial misconduct, and ineffective assistance of counsel deprived him of

his right to a fair trial. Where several errors standing alone do not warrant

reversal, the cumulative error doctrine requires reversal when the combined

effect of several errors denies the defendant a fair trial. State v. Weber, 159

Wn.2d 252, 279, 149 P.3d 646 (2006). “The doctrine does not apply where the

errors are few and have little or no effect on the outcome of the trial.” Weber,

159 Wn.2d at 279. Because Murphy has failed to demonstrate any errors, he

cannot avail himself of the cumulative error doctrine.

Sufficiency of the Evidence

        Murphy argues sufficient evidence does not support his convictions

because they rest on “unreliable” witnesses, prejudicial evidence, and violation of

his right to remain silent.9 We conclude sufficient evidence supports the

convictions.

        “Evidence is sufficient to support a conviction if, after viewing the evidence

in a light most favorable to the State, it allows any rational trier of fact to find all of

the elements of the crime charged beyond a reasonable doubt.” State v.

DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). A challenge to the

sufficiency of the evidence admits the truth of the State’s evidence and all




          9 In his reply brief, Murphy argues for the first time that the State failed to provide

evidence sufficient to meet the threshold $5,000 necessary to convict him of attempted theft in
the first degree. See RCW 9A.56.030(1)(a). We will not consider issues raised for the first time
in the reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992).


                                                13
No. 78231-2-I/14


reasonable inferences therefrom. DeVries, 149 Wn.2d at 849. Review for

sufficiency of the evidence is highly deferential to the jury’s decision and we do

not consider issues of credibility, persuasiveness, and conflicting testimony.

State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014).

       The State presented overwhelming evidence of Murphy’s guilt. All the

women involved in the incidents testified as to Murphy’s role in the bank fraud

scheme. As discussed above, they all provided specific evidence of Murphy’s

orchestration of the deposits and withdrawals of cash from their BECU accounts.

All of the women testified that Murphy stored a firearm in his car. Stewart-

Satterwhite described the incident in which Murphy obtained the gun from the

glove compartment and held it to her side. Additionally, BECU financial crime

investigator Avaava testified about her investigation of the bank fraud incidents

involving Stewart-Satterwhite, Sneed, Tinoco, and Barker-Henry. Avaava also

described and produced documents related to “over-the-counter teller deposits

and withdrawals” and debit card ATM transactions, as well as photographs

pertaining to the account holders, Murphy, and their bank activities.

       Viewing this evidence in a light most favorable to the State, we conclude

any rational trier of fact could find all the elements of the charged crimes beyond

a reasonable doubt.

Statement of Additional Grounds

       Murphy submitted a statement of additional grounds for review. He claims

he received ineffective assistance of counsel when his attorney improperly

proposed a special jury instruction on the firearm enhancements in count 1,




                                         14
No. 78231-2-I/15


attempted theft in the first degree; and count 2, assault in the second degree.

Murphy asserts the instruction relieved the State of its burden to prove a nexus

between the firearm and the crime. The jury instruction states:

             For purposes of the special verdicts, the State must prove
      beyond a reasonable doubt that the defendant was armed with a
      firearm at the time of the commission of the crimes charged in
      Count 1 and Count 2.
             For purposes of the special verdicts, a “firearm” is a weapon
      or device from which a projectile may be fired by an explosive such
      as gunpowder.

      This jury instruction was not erroneous. 11 Washington Practice:

Washington Pattern Jury Instructions: Criminal 2.10.01 (4th ed. 2016) (WPIC)

provides the pattern jury instruction for firearm enhancement special verdicts.

WPIC 2.10.01 states, “For purposes of a special verdict, the State must prove

beyond a reasonable doubt that the defendant was armed with a firearm at the

time of the commission of the crime [in Count __].”10 The instruction contains a

second paragraph with “nexus” language that states, “The State must prove

beyond a reasonable doubt that there was a connection between the firearm and

the crime.” WPIC 2.10.010.11 The “Note on Use” of this instruction specifies, “Do

not use the second paragraph in a case in which the weapon was actually used

and displayed during the commission of the crime.” WPIC 2.10.010.

      The firearm enhancements as charged in counts 1 and 2 are based on the

incident in which Murphy held a gun to Stewart-Satterwhite and attempted to

defraud BECU. Because Murphy used a firearm in the commission of the crime,




      10   Boldface omitted; alteration in original.
      11   Boldface omitted.


                                                  15
No. 78231-2-I/16


the nexus language was not used in the jury instruction. The Washington

Supreme Court has held that a special verdict instruction with the same language

at issue here properly “informs the jury that it must find a relationship between

the defendant, the crime, and the deadly weapon.” State v. Willis, 153 Wn.2d

366, 374, 103 P.3d 1213 (2005). We conclude defense counsel was not

deficient in proposing the instruction.

       We affirm the jury convictions of attempted theft in the first degree and

assault in the second degree with firearm enhancements, UPFA in the first

degree, and three additional counts of attempted theft in the first degree.




WE CONCUR:




                                          16
