IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
r. 1
DIVISION ONE
Respondent, ]
No. 70860-1-1 !
v.
i UNPUBLISHED OPINION •r-i
DAVID JAMES HANSEN III, 77
CO
CO
Appellant. I FILED: March 2, 2015
Dwyer, J. —Ajury convicted David Hansen of two counts of robbery in
the first degree. The charges arose from separate incidents involving different
victims. Hansen appeals, challenging the trial court's denial of his motion to
sever the counts. Balancing the potential prejudice ofjoinder against the
concerns of judicial economy, we conclude that the trial court properly exercised
its discretion in denying the motion to sever. We affirm.
I
On the evening of November 13, 2012 Troy Bodnar posted an
advertisement on Craigslist, soliciting a partner for an evening of sex and drug
use. David Hansen responded to the advertisement and the two men exchanged
e-mail messages. Bodnar invited Hansen to his home in Seattle.
Hansen called Bodnaron his cell phone shortly before he arrived at
around 10:00 p.m. The two men used methamphetamine, "got high and had
sex." Over the course of the night, Bodnar became "uneasy," partly based on
No. 70860-1-1/2
certain information Hansen shared and questions he asked. For instance, early
on, Hansen asked Bodnar if he had a gun, and later, Hansen offered to engage
in certain sexual activity for payment. Eventually, Bodnar asked Hansen to
leave. Hansen did not appear to be angry or offended.
However, after Bodnar dressed and emerged from the bathroom, he was
struck on the head and knocked to the ground. Afterward, Bodnar noticed a
candleholder in Hansen's hand. Hansen ordered Bodnar to stay on the ground,
stating that he had a gun, although Bodnar did not see a gun. Bodnar saw
Hansen running downstairs with Bodnar's iPad and Bodnar gave chase. Bodnar
then saw Hansen attempting to maneuver a bicycle out of the entryway. After
Hansen saw Bodnar press an alarm button on his keychain and nearby police
sirens became audible, Hansen left without the bicycle.
Bodnar realized that his head was bleeding profusely and that he needed
medical attention. He called 911. An ambulance arrived and medical personnel
took Bodnar to a nearby hospital for medical treatment. A few hours later, two
police officers accompanied Bodnar home from the hospital. They took
photographs and dusted for finger prints. Apprehensive about exposing his drug
activity, Bodnar did not allow the officers to search his bedroom. Bodnar had
deleted Hansen's e-mail messages and the photograph Hansen had sent him
and did not offer Hansen's telephone number to the police.
Several weeks later, Bodnar identified Hansen in a photomontage.
Hansen's fingerprints matched two latent fingerprints taken from the candleholder
Bodnar believed Hansen had used to strike him.
No. 70860-1-1/3
Almost two months after this incident, on the evening of January 4, 2013,
Al Payne arranged for an acquaintance, Josh Jasperson, to come to his Seattle
apartment. Payne's implicit expectation for the evening was that he and
Jasperson would use methamphetamine and have a sexual encounter.
Jasperson arrived and they used methamphetamine. Then, after exchanging
several text messages, Jasperson asked to invite Hansen to Payne's apartment.
Payne agreed, although he had never met Hansen.
Hansen arrived, used methamphetamine, and had sexual contact with
Jasperson. Sometime in the early morning, after the sexual contact, Hansen
said he had to leave. He did so.
Several hours later, in the early afternoon, Hansen unexpectedly returned
to Payne's apartment. Jasperson was still there. Hansen initially behaved in a
friendly manner, but about 10 minutes after he arrived, he removed a gun from
his waistband and said, "This is a robbery. Don't move or I'll kill you." Hansen hit
Payne on the leg with the gun. Payne believed the gun was real and later
described it as a semiautomatic, possibly a Glock.
Hansen took Payne's and Jasperson's cell phones. Then, he picked up a
reusable shopping bag and said, "[Wjhat do I want here?" Hansen took a laptop,
several watches, and Payne's wallet. Before leaving, Hansen said, "[Djon't call
the police, because I know where you live."
Payne and Jasperson remained on the sofa, in a state of "shock," for
some time after Hansen left. Jasperson then left the house. He soon returned,
accompanied by a mutual acquaintance who lent Payne a cell phone so that he
No. 70860-1-1/4
could call his cell phone service provider and credit card company and report the
theft. Jasperson left soon thereafter. Payne took sleep medication and went to
bed.
Payne did not report the incident to the police until approximately two
weeks later, after he read a news report about another person being robbed at
gunpoint. Payne gave Hansen's name and description to the police, but initially
refused to provide any contact information for Jasperson or information about the
person who lent him the cell phone after the robbery and who was mutually
acquainted with both Jasperson and Hansen.1 Afew days after he made his
report, Payne identified Hansen in a photomontage as the person who had
robbed him.
Police eventually arrested Hansen. The State charged him with two
counts of robbery in the first degree. The police searched Hansen's residence,
but found neither property belonging to Bodnar or Payne nor any weapons.
Prior to trial, Hansen moved to sever the two charges. The court denied
the motion. Bodnar and Payne were the primary witnesses at trial. Police
officers were unable to locate Jasperson. Hansen did not testify. The jury found
Hansen guilty as charged.
II
Hansen contends that the trial court abused its discretion in denying his
motion to sever the robbery counts. We disagree.
1Payne eventually provided Jasperson's e-mail to the police. He also testified that after
Hansen was arrested, he tried to contact Jasperson and convince him to cooperate with the
prosecution, to no avail.
No. 70860-1-1/5
Under CrR 4.3's "liberal" joinder rule, the trial court has considerable
discretion to join two or more offenses of "the same or similar character, even if
[they are] not part of a single scheme or plan." CrR 4.3(a)(1); State v.
Eastabrook. 58 Wn. App. 805, 811, 795 P.2d 151 (1990). Nevertheless, offenses
properly joined under CrR 4.3(a) may be severed "if 'the [trial] court determines
that severance will promote a fair determination of the defendant's guilt or
innocence of each offense.'" State v. Bvthrow. 114 Wn.2d 713, 717, 790 P.2d
154 (1990) (quoting CrR 4.4(b)). Prejudice may result from joinder where the
defendant is embarrassed or confounded by the presentation of separate
defenses, or if a single trial invites the jury to cumulate the evidence to find guilt
or infer criminal disposition. State v. Russell. 125 Wn.2d 24, 62-63, 882 P.2d
747 (1994). A defendant seeking severance has the burden of demonstrating
that "a trial involving both counts would be so manifestly prejudicial as to
outweigh the concern for judicial economy." Bvthrow. 114 Wn.2d at 718.
In determining whether the potential for prejudice requires severance, a
trial court must consider four factors that may "offset or neutralize the prejudicial
effect of joinder": (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 potential cross-admissibility of
evidence on the other charges even ifthey were tried separately. Russell. 125
Wn.2d at 63; State v. Sanders. 66 Wn. App. 878, 885, 833 P.2d 452 (1992).
"[A]ny residual prejudice must be weighed against the need for judicial economy."
Russell. 125 Wn.2d at 63. We review a trial court's denial of a CrR 4.4(b) motion
No. 70860-1-1/6
to sever counts for a manifest abuse of discretion. Bvthrow. 114 Wn.2d at 717;
State v. Bryant. 89 Wn. App. 857, 864, 950 P.2d 1004 (1998).
Concerning the first factor, Hansen argues that the evidence supporting
the charge involving Bodnar was significantly stronger and bolstered the weaker
charge involving Payne. Severance may be proper when the evidence on one
count is "remarkably stronger" than the other. State v. MacDonald. 122 Wn. App.
804, 815, 95 P.3d 1248 (2004). Hansen claims that Bodnar's allegations were
corroborated by the testimony of a latent print examiner and police officers who
responded to Bodnar's 911 call, whereas no witnesses corroborated Payne's
allegations. But the only witness who shed light on the contested issue—
whether the encounter with Hansen ended in a robbery as alleged—was Bodnar.
The fingerprint match merely confirmed that Hansen had been at Bodnar's home,
a fact Hansen did not dispute. The testimony did not conclusively establish that
Hansen used the candleholder as a weapon against Bodnar in order to rob him.
Evidence is sufficiently strong if it would allow a rational jury to find the
defendant guilty of each charge independently. Bryant. 89 Wn. App. at 867.
With respect to both counts, the victims' testimony established that the robberies
occurred and this evidence was sufficiently strong on both counts. There was no
significant disparity in the strength of the State's evidence that led to manifest
prejudice resulting from the joint trial.
As to the clarity of defenses, Hansen contends that his desire to testify
about one charge and not the other charge required severance. In the trial court,
Hansen indicated his intent to raise self-defense as a defense to the count
No. 70860-1-1/7
involving Bodnar as opposed to his defense of general denial as to the count
involving Payne. While reserving the right to decide at trial whether to testify,
Hansen said he might testify as to one count and not the other. At the hearing on
the severance motion, defense counsel explained that a defendant asserting self-
defense would "typically" take the stand in order to explain how the injury
occurred. Hansen then argued that it would be "way too prejudicial" for him to
testify as to only one charge because the jury could speculate that he was "hiding
something" with respect to the other charge or that he had no defense. Later
during the same hearing, the court ruled that if Hansen did testify, the State
would be permitted to impeach him with evidence of several prior convictions.
An expressed desire to testify as to one count but not others does not,
without more, require severance. Russell. 125 Wn.2d at 65; State v. Watkins. 53
Wn. App. 264, 269-70, 766 P.2d 484 (1989). Severance is required only if a
defendant makes a "'convincing showing that she has important testimony to give
concerning one count and a strong need to refrain from testifying about another.'"
Russell. 125 Wn.2d at 65 (quoting Watkins. 53 Wn. App. at 270).
In Russell, the defendant made no offer of proof as to the content of his
anticipated testimony as to one count and, consequently, the court could not
conclude that joinderof three murder counts involving separate dates and victims
affected his decision not to testify. 125 Wn.2d at 65. Likewise, here, beyond
stating that which a claim of self-defense "typically" involves, Hansen made no
offer of proof with regard to his testimony. And while Hansen declared that he
had no "obligation to testify" on the second count, he failed to identify a strong
No. 70860-1-1/8
need to refrain from testifying with respect to the count involving Payne. As in
Russell, this record does not provide an adequate basis for us to evaluate
whether or how joinder affected Hansen's decision not to testify. See Russell.
125 Wn.2d 65-66.
The third factor is not significant here because the court's instructions
directed the jury to "decide each count separately" and not to let its "verdict on
one count... control [the] verdict on the other count." Appellate courts have
repeatedly found this instruction sufficient to mitigate prejudice resulting from
joinder. See, e.g.. Bvthrow. 114 Wn.2d at 723; State v. Cotten. 75 Wn. App. 669,
688, 879 P.2d 971 (1994).
Finally, as to the cross admissibility of the evidence in separate trials, the
trial court observed that the evidence was likely cross-admissible because the
incident involving Bodnar was relevant to Payne's "significant delay in reporting,
explained by reading about the defendant's other case that happened a couple of
months later." Hansen argues that the trial court failed to properly analyze this
factor under ER 404(b). He also correctly points out that the Bodnar incident
took place two months before, not after, the incident at Payne's apartment and
accordingly argues that the record does not support the court's reason for
concluding that the Bodnar incident was relevant to the timing of Payne's report.
Even assuming the court erred in its determination of cross-admissibility,
"[t]he fact that separate counts would not be cross admissible in separate
proceedings does not necessarily represent a sufficient ground to sever as a
matter of law." State v. Kalakoskv. 121 Wn.2d 525, 538, 852 P.2d 1064 (1993).
8
No. 70860-1-1/9
For instance, in Bvthrow. the Supreme Court determined that despite some
general similarities, evidence about a donut shop robbery would not have been
admissible in the separate trial of a gas station robbery. 114 Wn.2d at 720.
Nevertheless, the court held that, "'[w]hen evidence concerning the other crime is
limited or not admissible, our primary concern 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.'" Bvthrow. 114 Wn.2d at
721 (Quoting United States v. Johnson. 820 F.2d 1065, 1071 (9th Cir.1987)).
Where the issues are relatively simple and the trial was short, the jury may be
reasonably expected to compartmentalize the evidence, and "there may be no
prejudicial effect from joinder even when the evidence would not have been
admissible in separate trials." Bvthrow. 114 Wn.2d at 721. The issues in
Hansen's case were relatively simple and his trial took place over two days. The
jury could reasonably be expected to compartmentalize the evidence.
While potential for prejudice invariably exists when similar counts are
joined, the potential prejudice in this case was mitigated by several factors,
including the sufficiently strong evidence on each count, the relatively equal
strength of the evidence supporting each count, the clarity of defenses, and the
jury instructions. Moreover, the defendant must be able to point to "specific
prejudice" from the trial court's failure to sever counts; and any "residual
prejudice" must still be "weighed against the need for judicial economy." Russell.
125 Wn.2d at 63; Bvthrow. 114 Wn.2d at 720. Hansen fails to demonstrate any
No. 70860-1-1/10
specific prejudice resulting from the trial court's denial of his motion to sever the
robbery counts. The trial court did not abuse its discretion.
Affirmed.
^
We concur:
^f^Jtv^^MsJ N
10
State Of Washington v. David James Hansen, Iii
Combined Opinion