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

v. BRANDON LEE HANSEN, Appellant. No. 71215-2-1 DIVISION ONE

UNPUBLISHED FILED: July 27, 2015 c?1

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Cox, J. - To show ineffective assistance ofcounsel based on the failure to raise a motion to sever, the defendant must establish thatthe court likelywould 

### have granted the motion.1 Here, BrandonHansen's counsel failed to renew a motion to sever Hansen's charges at the close ofthe evidence following the court's earlier denial ofthe same motion. Because Hansen cannot show that the 

### courtlikelywould have granted the renewed motion, hisineffective assistance of counsel claim fails. We affirm. 

### The State charged Hansen with several domestic violence offenses. They included Assault in the Second Degree—DomesticViolence. The State also 

### charged Hansenwith seven counts of domesticviolencefelony violation of a court order. All eight counts allegedly involved L.H. 

### The State initially brought onlythe assaultcharge against Hansen. As 

### part ofthe assault case, the State sought an orderprohibiting Hansenfrom 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 severthe charges at the close ofevidence. Thejury 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 ofcounsel. Specifically, he argues that his counsel's performance was constitutionally deficient because she failed to renew the motion to severthe charges against him at the close of the evidence. We disagree. 

### The rightto counsel includes the righttoeffective assistance ofcounsel.2 An ineffectiveassistance ofcounsel claim has two components.3 Ifa defendant cannot demonstrate both components, the claimfails.4

2Strickland 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. 

### 4id 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 ofreasonableness."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 ofthe proceeding would have been 

### different."10 "A reasonable probability is a probability sufficient to undermine confidence in the outcome."11 Ifthe allegedly ineffective assistance is based on counsel's failure to move 

### to sever, the defendant mustdemonstrate two things to establish prejudice.12 First, the defendant must show that the trial court likelywould have granted a

5 Strickland. 466 U.S. at 687. 

### 6]g\ at 688. 7 In re Pers. Restraint ofGomez, 180 Wn.2d 337, 348, 325 P.3d 142 (2014).8State 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 thatthejury would not have found him guilty, ifthe court had granted the motion.14 CrR 4.4 governs motions to sever. When deciding a motion to sever 

### charges, trialcourts weigh potential prejudice againstjudicial economy.15 "The lawdoes 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 judicialeconomy."17 In orderto 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 ofthe State's evidence on each 

### count; (2) the clarity ofdefenses as to each count; (3) court instructions to the 

### jury to considereach count separately; and (4) the admissibility ofevidence of the othercharges even if not joined fortrial."19

13 Jd, 14Id 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 Otherfactors that can warrant severance are: "if (1) the defendant may have to present separate, possibly conflicting, defenses; (2) thejury 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, ifconsidered 

### separately, the evidence would not supportevery charge."20 This court reviews de novo a claim of ineffective assistance ofcounsel.21 Here, Hansen does not argue that denial ofthe original motion to sever was erroneous. The question is whetherthe failure to renew the motion shows his counsel's performance was deficient. 

### Balancing the factors indicates that the courtwould 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 Zilbauertestified that she responded to a 911 hang-up call. 

### She recognized the voice on the call as L.H.'s. OfficerZilbauerdrove 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 OfficerZilbauer asked what happened, L.H. responded, 

### "My boyfriend Brandon beatthe s[**]t out of me." OfficerZilbauer then asked ifit
was Brandon Hansen, and L.H. responded affirmatively. Officer Zilbauer observed that L.H. "appeared terrified." L.H. told Officer Zilbauerthat Hansen had hitherwith 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 thatwhile she was withL.H., L.H. kept repeating, "Hebeat 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]ebeatthe 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 OfficerZilbauer's testimony, the State played several recorded telephone calls for thejury. The calls had been made from King County Jail, using Hansen's phone PIN. OfficerZilbauer identified the speakers on the calls

as Hansen and L.H. Although the female speaker did not identify herselfas 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 ofthe phone calls correlated with Hansen's location inthejail. Thus, strong evidence supported all charges. Accordingly, there was no 

### dangerthat "cumulative evidence [would] lead to a guilty verdict on all charges 

### when, ifconsidered separately, the evidencewould not support everycharge."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 

### violationcharges was that he had notbeen speaking to L.H., but ratherto 

### someone else. When the defendant's defenses to multiple counts is denial, "[t]he likelihoodthatjoinderwill cause a jury to be confused as to the accused's 

### defenses is verysmall."23 Thus, there was no danger that thejurywould 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 thejury to considerthe evidence for the different counts 

### separately. The court instructed thejury to considerthe phone calls only forthe violation of a no-contact order. Italso specifically instructed thejury not to use the evidence ofthe phone calls when considering the assault charge. We presume thejury followed these instructions. Although the evidence for the different charged crimes was not crossadmissible, this factor by itselfis insufficientto entitle Hansen to severance. In its pretrial ruling, the court noted that whetherthe evidence would be crossadmissible was "notentirely clear." But itappears that the court ultimately found thatthe evidence ofthe calls was not admissible for the assault charge, as it instructed thejury to considerthe recordings only for the no-contact order charges. However, this single factor does not establish that the courtwould have severed the charges ifHansen's counsel had renewed her motion.

23 Russell, 125Wn.2dat64.No. 71215-2-1/8 

### Thus, Hansen cannot showthatthe court would have granted a renewed motion to severthe charges. Accordingly, Hansen cannot show that the failure to
renew the motion prejudiced him. 

### Further, Hansen cannot show a reasonable probability thatthejury would 

### have found him not guilty on any one ofthe 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 thatthe trial courtwould have likelygranted 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 ofevidence to supportthis contention: that
no eyewitnesses saw Hansen call L.H.; the person on the phone with Hansen did not identify herselfas L.H.; only OfficerZilbauer 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 herselfas 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 himselfas "Brandon," and OfficerZilbauertestified that she recognized his voice. Thejury 

### was thejudge ofthe credibility of OfficerZilbauer's testimony as to the identity of the voice on the call.No. 71215-2-1/9 Hansen also argues thatthe evidence was not cross-admissible. 

### Assuming Hansen is correct, this is not dispositive. Our supreme court has held that even incases where evidence is not cross-admissible, the "proposition that severance is required inevery case is erroneous."24 Hansen also argues thatthejurywas likelyunable to compartmentalize the evidence ofthe two counts. To supportthis proposition, Hansen contrasts 

### his case with State v. Bvthrow25 for this proposition. ButHansen's argument is unpersuasive. 

### Inthat case, the supreme court held that there was no danger ofprejudice 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 ofthose 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 "agreaterdanger of prejudice."28 Here, the alleged assaultwas not similar to the charged violations ofthe no-contact order. Thus, there was no danger that thejury would confuse evidence ofone count as evidence ofthe other. Accordingly, the fact that the

24Bvthrow, 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 likelyconfuse thejury. 

### Finally, Hansen argues thattrying his charges together allowed the jury to inferthat he "had a criminal disposition." But this concern is present in allcases 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 thejudgment and sentence. 

# fjrrtt

WE CONCUR:



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29 Huvnh. 175 Wn. App. at 908. 30 Bvthrow. 114 Wn.2d at 720. 

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