IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71215-2-1 c?1
Respondent, DIVISION ONE
v.
BRANDON LEE HANSEN, UNPUBLISHED r--
Appellant. FILED: July 27, 2015
Cox, J. - To show ineffective assistance of counsel based on the failure to
raise a motion to sever, the defendant must establish that the court likely would
have granted the motion.1 Here, Brandon Hansen's counsel failed to renew a
motion to sever Hansen's charges at the close of the evidence following the
court's earlier denial of the same motion. Because Hansen cannot show that the
court likely would have granted the renewed motion, his ineffective assistance of
counsel claim fails. We affirm.
The State charged Hansen with several domestic violence offenses. They
included Assault in the Second Degree—Domestic Violence. The State also
charged Hansen with seven counts of domestic violence felony violation of a
court order. All eight counts allegedly involved L.H.
The State initially brought only the assault charge against Hansen. As
part of the assault case, the State sought an order prohibiting Hansen from
State v. Sutherbv, 165 Wn.2d 870, 884, 204 P.3d 916 (2009).
No. 71215-2-1/2
contacting L.H. The court granted the no-contact order. While in jail, Hansen
allegedly violated this order, leading to the additional charges.
Before trial, Hansen moved to sever the assault charge from the violation
of a no-contact order charges. The trial court denied the motion. Hansen's
counsel did not renew the motion to sever the charges at the close of evidence.
The jury found Hansen guilty of all charged counts.
After trial, Hansen's counsel withdrew, stating that she believed she had
provided ineffective assistance of counsel.
Hansen appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Hansen argues that he received ineffective assistance of counsel.
Specifically, he argues that his counsel's performance was constitutionally
deficient because she failed to renew the motion to sever the charges against
him at the close of the evidence. We disagree.
The right to counsel includes the right to effective assistance of counsel.2
An ineffective assistance of counsel claim has two components.3 If a defendant
cannot demonstrate both components, the claim fails.4
2 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Crawford. 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).
3 Strickland, 466 U.S. at 687.
4 id at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
No. 71215-2-1/3
First, the defendant must show that counsel's performance was deficient.5
This requires showing that counsel's performance fell below "an objective
standard of reasonableness."6 Washington courts are "highly deferential to
counsel's performance."7 Courts presume that counsel provided effective
representation and require the defendant to prove that no "legitimate strategic or
tactical reasons" exist.8
Second, the defendant must show that the deficient performance
prejudiced the defense.9 Prejudice is "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different."10 "A reasonable probability is a probability sufficient to undermine
confidence in the outcome."11
If the allegedly ineffective assistance is based on counsel's failure to move
to sever, the defendant must demonstrate two things to establish prejudice.12
First, the defendant must show that the trial court likely would have granted a
5 Strickland. 466 U.S. at 687.
6 ]g\ at 688.
7 In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142
(2014).
8 State v. McFarland. 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
9 Strickland, 466 U.S. at 687.
1014 at 694.
11 Id,
12 Sutherbv. 165 Wn.2d at 884.
No. 71215-2-1/4
motion to sever.13 Second, the defendant must show that it is reasonably
probable that the jury would not have found him guilty, if the court had granted
the motion.14
CrR 4.4 governs motions to sever. When deciding a motion to sever
charges, trial courts weigh potential prejudice against judicial economy.15 "The
law does not favor separate trials."16 The defendant has the burden to show "that
a trial involving both counts would be so manifestly prejudicial as to outweigh the
concern for judicial economy."17 In order to be entitled to severance, "[T]he
defendant must be able to point to specific prejudice."18
Courts weigh four factors when determining whether prejudice requires
granting a motion to sever: "(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."19
13 Jd,
14 Id
15 State v. Russell. 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
16 State v. Huvnh. 175 Wn. App. 896, 908, 307 P.3d 788, review denied,
179Wn.2d 1007(2013).
17 State v. Bvthrow. 114 Wn.2d 713, 718, 790 P.2d 154(1990).
18 id at 720.
19 Sutherbv. 165 Wn.2d at 884-85 (quoting Russell. 125 Wn.2d at 63).
No. 71215-2-1/5
Other factors that can warrant severance are: "if (1) the defendant may
have to present separate, possibly conflicting, defenses; (2) the jury may infer
guilt on one charge from evidence of another charge; or (3) the cumulative
evidence may lead to a guilty verdict on all charges when, if considered
separately, the evidence would not support every charge."20
This court reviews de novo a claim of ineffective assistance of counsel.21
Here, Hansen does not argue that denial of the original motion to sever
was erroneous. The question is whether the failure to renew the motion shows
his counsel's performance was deficient.
Balancing the factors indicates that the court would have denied the
renewed motion to sever. Thus, Hansen cannot show prejudice.
The State presented strong evidence for each count during trial.
At trial, Officer Nona Zilbauer testified that she responded to a 911 hang-up call.
She recognized the voice on the call as L.H.'s. Officer Zilbauer drove to the area
from which the call was made and saw a woman she recognized as L.H. Officer
Zilbauer saw L.H. "crying hysterically, [and] holding her face, or the side of her
head, in pain." When Officer Zilbauer asked what happened, L.H. responded,
"My boyfriend Brandon beat the s[**]t out of me." Officer Zilbauer then asked if it
was Brandon Hansen, and L.H. responded affirmatively. Officer Zilbauer
observed that L.H. "appeared terrified." L.H. told Officer Zilbauer that Hansen
had hit her with a closed fist and squeezed her neck with his hands.
20 Huvnh. 175 Wn. App. at 908-09.
21 Gomez. 180 Wn.2d at 347.
No. 71215-2-1/6
The paramedics who transported L.H. to the hospital also testified. One
paramedic testified that while she was with L.H., L.H. kept repeating, "He beat
the f[**]k out of me." L.H. also stated that she had been choked. Later, the
paramedic overheard L.H. tell a nurse that her boyfriend had choked her.
Similarly, another paramedic testified that L.H. stated "[h]e beat the f[**]k out of
me" and "he choked me" without specifying whom she was referring to. Thus,
strong evidence supported the assault charge.
The State also presented strong evidence for the no-contact order
violations. During Officer Zilbauer's testimony, the State played several recorded
telephone calls for the jury. The calls had been made from King County Jail,
using Hansen's phone PIN. Officer Zilbauer identified the speakers on the calls
as Hansen and L.H.
Although the female speaker did not identify herself as L.H., the content of
the calls was consistent with Hansen and L.H.'s relationship. Additionally, an
officer at King County Jail testified that the location of the phone calls correlated
with Hansen's location in the jail.
Thus, strong evidence supported all charges. Accordingly, there was no
danger that "cumulative evidence [would] lead to a guilty verdict on all charges
when, ifconsidered separately, the evidence would not support every charge."22
Hansen's defenses for the different counts also did not require
severance—the defenses for the different crimes were clearly distinct. Hansen's
defense for the assault charge was identity. Hansen argued that he had not
22 Huvnh. 175 Wn. App. at 908-09.
No. 71215-2-1/7
been the person who assaulted L.H. Hansen's defense to the no-contact order
violation charges was that he had not been speaking to L.H., but rather to
someone else. When the defendant's defenses to multiple counts is denial, "[t]he
likelihood that joinder will cause a jury to be confused as to the accused's
defenses is very small."23 Thus, there was no danger that the jury would confuse
the defenses to the different charges. And Hansen's defenses did not conflict
with each other.
The court instructions also supported trying the charges together. The
court instructed the jury to consider the evidence for the different counts
separately. The court instructed the jury to consider the phone calls only for the
violation of a no-contact order. It also specifically instructed the jury not to use
the evidence of the phone calls when considering the assault charge. We
presume the jury followed these instructions.
Although the evidence for the different charged crimes was not cross-
admissible, this factor by itself is insufficient to entitle Hansen to severance. In
its pretrial ruling, the court noted that whether the evidence would be cross-
admissible was "not entirely clear." But it appears that the court ultimately found
that the evidence of the calls was not admissible for the assault charge, as it
instructed the jury to consider the recordings only for the no-contact order
charges. However, this single factor does not establish that the court would have
severed the charges if Hansen's counsel had renewed her motion.
23 Russell, 125Wn.2dat64.
No. 71215-2-1/8
Thus, Hansen cannot show that the court would have granted a renewed
motion to sever the charges. Accordingly, Hansen cannot show that the failure to
renew the motion prejudiced him.
Further, Hansen cannot show a reasonable probability that the jury would
have found him not guilty on any one of the charges. As discussed previously,
the State had strong evidence of both the assault charge and the violations of a
no-contact order charges.
Hansen argues that the trial court would have likely granted a motion to
sever. But his arguments are unpersuasive.
First, Hansen argues that the evidence on the no-contact order violations
was weak. Hansen cites four pieces of evidence to support this contention: that
no eyewitnesses saw Hansen call L.H.; the person on the phone with Hansen did
not identify herself as L.H.; only Officer Zilbauer identified the voices on the call;
and while the calls were made with Hansen's PIN, inmates routinely traded their
phone PINs. These objections are not persuasive.
For example, Hansen does not cite any authority indicating that an
eyewitness to the call is necessary for a conviction. Moreover, although the
person on the phone did not identify herself as L.H., several statements she
made indicated that she was L.H. Finally, although Hansen could have provided
his PIN to another inmate, the calls began with the caller identifying himself as
"Brandon," and Officer Zilbauer testified that she recognized his voice. The jury
was the judge of the credibility of Officer Zilbauer's testimony as to the identity of
the voice on the call.
No. 71215-2-1/9
Hansen also argues that the evidence was not cross-admissible.
Assuming Hansen is correct, this is not dispositive. Our supreme court has held
that even in cases where evidence is not cross-admissible, the "proposition that
severance is required in every case is erroneous."24
Hansen also argues that the jury was likely unable to compartmentalize
the evidence of the two counts. To support this proposition, Hansen contrasts
his case with State v. Bvthrow25 for this proposition. But Hansen's argument is
unpersuasive.
In that case, the supreme court held that there was no danger of prejudice
because the trial was short, the State presented the evidence for the different
counts sequentially, different witnesses testified for each count, and the defenses
for each count were different.26
Hansen argues that most of those factors were not present in his case,
thus severance was necessary. But Bvthrow involved two charges of armed
robbery.27 Because the crimes were similar, there was "a greater danger of
prejudice."28 Here, the alleged assault was not similar to the charged violations
of the no-contact order. Thus, there was no danger that the jury would confuse
evidence of one count as evidence of the other. Accordingly, the fact that the
24 Bvthrow, 114 Wn.2d at 720.
25 114 Wn.2d 713, 790 P.2d 154 (1990).
26 Id at 723.
27 id
28 Id.
No. 71215-2-1/10
case was not presented sequentially, and that the witnesses overlapped, did not
likely confuse the jury.
Finally, Hansen argues that trying his charges together allowed the jury to
infer that he "had a criminal disposition." But this concern is present in all cases
where multiple counts are tried together. Yet, "The law does not favor separate
trials."29 And it is the defendant's burden to show specific prejudice.30 Here,
Hansen fails to show specific prejudice.
We affirm the judgment and sentence.
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WE CONCUR:
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