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

v. TYRA ELEANOR SCHY, Appellant. or. 

## No. 72111-9-1 S I;

UNPUBLISHED OPINION ^ B^

FILED: September 21, 2015 Schindler, J. — Tyra Eleanor Schy appeals her convictions for first degree 

### burglary while armed with a deadly weapon in violation of RCW 9A.52.020 and RCW 9.94A.825 and second degree assaultwhile armed with a deadly weapon in violation of RCW 9A.36.021 and RCW 9.94A.825. Schy argues her attorney provided ineffective assistance ofcounsel by failing to move for a mistrial. Because Schy cannotestablish ineffective assistance ofcounsel, we affirm. In December 2012, Nicholas Eckert and Michael Oakley lived in a house in 

### Everett. The night ofDecember28, Eckert drove Oakley to meet some friends at a McDonald's in Arlington. After Eckert dropped off Oakley, he returned home to Everett. 

### Oakley and his friend Austin Clouatre arrived at Eckert's house in the early morning hours of December 29.No. 72111-9-1/2 Several minutes later, Oakley heard a tap on the window of his room. Oakley looked out the window and saw a friend on the front porch. As Oakley opened the front door, he saw five people on the porch, including Tyra Eleanor Schy, Jerome Poulon, and Iran Ramirez. Seconds later, Schy punched Oakley inthe left side of his face and then went into the house carrying a knife. Poulon, who was carrying a metal pipe, followed Schy inside. Eckert heard the "scuffle" on the porch and began yelling at Schy and Poulon to leave. Schy advanced toward Eckert, threatening him with a knife. Eckert backed into a bathroom and pushed the door shut. Meanwhile, Oakley ran outthe front door ofthe house and began pounding on the door of a neighboring house for help. After Schy left Eckert's house, Oakley started running down the street. Schy chased Oakley with the knife in her hand. A neighbor
called 911. While Schy was chasing Oakley outside, Poulon went into Oakley's bedroom, grabbed a laptop, and leftthe house. Clouatre followed Poulon but Poulon told him to

return to the house. Clouatre waited in Eckert's house for several minutes and then

went home. The State charged Schy, Poulon, and Ramirez with first degree burglary while armed with a deadly weapon. Poulon and Ramirez pleaded guilty to the charge and 

### agreed to testify at trial. Byamended information, the State charged Schy with first degree burglary while armed with a deadly weapon and second degree assaultwhile armed with a deadly weapon. 

### The three-dayjury trialbegan on May 19, 2014. Before voir dire, the defendant 

### moved to exclude testimony that Schy was "always known to carry a knife around withNo. 72111-9-1/3 her prior to this alleged incident." In specific, Ramirez had previously stated that Schy "always carried a knife." The prosecutor argued that ifSchy were known to carry a knife in her purse, itwould be relevant and more probative than prejudicial. The court reserved ruling on the motion. The court ruled the prosecutorwould need to make an offer of proof. The State called Eckert, Oakley, and Clouatre to testify. Eckert, Oakley, and Clouatre each testified that a woman entered the house holding a knife. Eckert testified the knife was 16 to 18 inches long. Oakley testified the knife was about 7 inches long. Clouatre testified the knife was 5 to 6 inches long. The State called Poulon. Poulon testified that neither Schy nor Ramirez had consumed alcohol or ingested drugs that night. Poulon testified that he did not remember Schy or Ramirez entering Eckert's house. On cross-examination, Poulon 

### stated he never saw Schy with a knife during the incident. On redirect, Poulon said he could not see Schy's hands while they were at the front door but he saw Schy's right hand pointing at Oakley. 

### The State called Ramirez to testify. Ramirez testified through a certified Spanish 

### interpreter. Ramirez testified that inDecember 2012, he was in a relationship with 

### Schy. Shortly after Ramirezbegan testifying, the defense attorney requested a sidebar about the order in limine. The court reminded the State that it must make an offer of 

### proof before Ramirez could testify that Schy always carries a knife. The prosecutorsaid 

### the State "was notintending to ask this witness about any knife-carrying other than this particular day."No. 72111-9-1/4 Following the sidebar, Ramirez testified thatwhile at Poulon's house on December 28, he used methamphetamines, and Schy consumed alcohol and used methamphetamines and marijuana. Ramirez testified he agreed to drive the group to Eckert's house that night. Ramirez remembered seeing Poulon with a large "Rambo type" knife and that Poulon put the knife inthe backseat ofthe carwhere Schy was sitting. Ramirez then testified he saw Schy that night with a "folding knife that opens up." The prosecutorthen asked, "Okay. When did you see herwith a knife on that 

### night?" The interpretertranslated, "She always —" before the court interrupted and excused thejury. The court explained to the attorneys that "I speak Spanish" and confirmed with 

### the interpreter that Ramirez had stated that "she always carries a knife" inviolation of the order in limine. The prosecutor stated the answerwas "obviously" not inresponse 

### to the question. The defense attorney expressed concern that a juror could have understood what Ramirez said, "I think that we should somehowfindthat out. .. . [I]f 

### somebody did [understand his statement], Imean, automatically, I'd move for a mistrial." On the other hand, the defense attorney stated, "[l]fnobody heard what was being said 

### in Spanish and they didn't interpretit, Iguess I'd move to strike it at thispoint." With the 

### agreement ofthe parties, the court decided to continueRamirez's testimony and after a break, askthejurors ifany ofthem speak Spanish. 

### Before resuming the testimony of Ramirez, the court instructed the jury"to 

### disregard that last question and partial answer." Ramireztestified that Schy had a 

### folding knife with her thatevening and that the blade ofthe knife was slightly shorter than the length of a pen.No. 72111-9-1/5 After the lunch recess, the defense attorney asked the court to determine whether anyjuror understood Spanish. The defense attorney stated that "ifthere is something where somebody has heard something, there is a potential violation, I'm going to have to move for a mistrial. Idon't want to, of course, but like Isaid, that's a duty to my client." Before resuming Ramirez's examination, the court asked thejurors, "[Djoes anybody here speak Spanish?" After nojurorresponded, the court stated, "All right. That seems to address the problem." During a recess, the defense attorney stated that "the Court did a greatjob ofcuring that," that he did not "see anything that 

### would prejudice thejury or impactthe jury with anything that was said," and that he was "fine with moving on." 

### Schy testified. Schy denied that she had a knife and denied that she assaulted Eckert. Schy stated that during the altercation on the front porch, Oakley "pushed" her to the ground and Eckert yelled at her. Schy testified she had her purse and her phone in her left hand but had "nothing" in her right hand. Schy denied entering the house that evening. 

### The jury found Schy guilty as charged of firstdegree burglary and second degree assault. Byspecial verdict, the jury found Schy was armed with a deadly weapon during the commission ofthe crimes. Schy appeals. 

### Schy claims her attorneyprovided ineffective assistance of counsel byfailing to

move for a mistrial after a violation ofthe court's order in limine. To establish ineffective assistance ofcounsel, a defendant must show both that 

### counsel's performance was deficient and that the performance prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.No. 72111-9-1/6 

### Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). To show deficient performance, Schy must satisfy the "heavy burden" ofshowing that her 

### attorney" 'made errors so serious that counsel was not functioning as the "counsel" 

### guaranteed the defendant by the SixthAmendment.'" State v. Howland. 66 Wn. App. 586, 594, 832 P.2d 1339 (1992); Thomas. 109 Wn.2d at 225 (quoting Strickland, 466 

### U.S. at 687). The attorney's performance must have fallen below "an objective standard of reasonableness based on consideration ofall the circumstances." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To satisfy the prejudice 

### prong, a defendant must show a "reasonable probabilitythat, exceptfor counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 334-35. 

### Schy cannot establish deficient performance of counsel or prejudice. Schy 

### claims her attorney'sperformancewas deficientbecause the attorney did notmovefor
a mistrial on the grounds that Ramirez's testimonyviolated the court's orderin limine. " 'The trial court should grant a mistrial only when the defendant has been so 

### prejudiced thatnothing short ofa newtrial caninsurethat thedefendantwill betried fairly.'" Statev. Johnson, 124Wn.2d 57, 76, 873P.2d 514(1994) (quoting Statev. Hopson. 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). 

### "In determining theeffectof an irregularoccurrenceduring trial, weexamine '(1) its seriousness; (2) whetheritinvolved cumulative evidence; and (3) whetherthetrial 

### courtproperly instructed thejurytodisregard it.'" Johnson, 124Wn. 2d at 76(quoting Hopson, 113 Wn.2d at 284).No. 72111-9-1/7 

### The trial irregularity—a partiallytranslated statementthatviolated the court's order in limine—was not serious and the court cured the irregularity by sustaining the motion to strike. The court instructed thejurythat "[i]fevidence was not admitted orwas stricken from the record, then you are not to consider it inreaching your verdict." The 

### jury is presumed to follow instructions to disregard improperevidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994). Accordingly, ifSchy's attorney had moved for a mistrial, the courtwould not have abused its discretion in refusing to grantthe motion. 

### See State v. Wade, 186 Wn. App. 749, 773-75, 346 P.3d 838 (2015) (trial court did not abuse its discretion in denying a motion for mistrialwhere the violationwas notserious 

### and anyresulting prejudicewas cured). Schy cannot show that she received ineffective
assistance of counsel. 

### We affirm Schy's convictions forfirst degree burglarywhile armed with a deadly weapon and second degree assaultwhile armed with a deadly weapon. 

# wa&>v'

WE CONCUR: