IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78346-7-I DIVISION ONE UNPUBLISHED OPINION
Appellant. FILED: February 10, 2020 CHUN, J.

— Michael Lou appeals his convictions forfirst degree identity theft, forgery, first degree theft, second degree identitytheft, and second degree theft. He claims thattwo in-court identifications were impermissibly suggestive and therefore violated his rightto due process. He also contends that his trial counsel performed ineffectively byfailing to renew a motion to sever, move fora mistrial, or request a limiting instruction afterthe court dismissed three counts at the close ofthe State’s case. We determine that, because the identifications contained sufficient indicia of reliability, Lou’s due process claim fails. Additionally, we reject Lou’s ineffective assistance ofcounsel claim because he fails to showthat his counsel’s performance was deficient orthat it prejudiced him. Accordingly, we affirm exceptto remand to strike the criminal filing and deoxyribonucleic acid (DNA) fees from the Judgment and Sentence. Respondent,
V. MICHAEL THOMAS LOU,No. 78346-7-1/2

I. BACKGROUND On August 5, 2016, Lynden police arrested Ronald McKinneyfor using a fake driver’s license to complete a credit application. Following his arrest, McKinneytold police the following: Lou made fake identifications (IDs) for him and he used the IDs to purchase items on credit. The IDs contained McKinney’s photograph but another person’s name and identifying information. McKinney and Lou sold the items online fortwo-thirds oftheir price. The two splitthe profit. On June 1, 2017, the State filed an amended information charging Lou with 22 counts: leading organized crime (count 1), first degree identitytheft (counts 2,5, 11, 16, 21), 

### forgery (counts 3,7,10,12-15, 17, 19, 22), first degree theft (count4), trafficking in stolen property (count 8), second degree identity theft (counts 9, 18), and second degree theft (counts 6, 20). Lou’s attorney moved to severthe trial, which motion the court denied. The courtfound that Lou had “failed to demonstrate that [he] would be unduly prejudiced by having Counts 1-22 presented to ajury in a single trial.” Lou again submitted a motion to sever, which the court denied. Witness Jordan Giske testified at Lou’s trial as follows: On July 16, 2016, while atwork at a Washington Tractorstore, Giske spent20-25 minutes helping
a customer purchase equipment. Because the customer applied forfinancing, Giske collected personal information. The customer identified himselfas Michael Avis and provided a driver’s license with that name. The customerwas “approximately 5’8” orso, 180 to 185 pounds, fit orstocky build and [C]aucasian
or Oriental.” Giske stated that hewas “100 percent sure” that Lou was the
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customer he helped that day. Giske agreed with the defense that Lou was the only person in the courtroom who matched his description ofthe customer. Giske additionally stated that he had seen Lou walking outside the courtroom. After Giske leftthe witness stand, the defense stated, because Lou
was in custody, he must have been in handcuffs and escorted by officers when Giske saw him outside ofthe courtroom. The court agreed. Josh Bair also testified forthe State. Bair’s testimony provided the following: While working atJ & I Power Equipment on July 21, 2016, Bairspent between 30 minutes and an hour helping a customerwith financing forsome equipment. Bair recollects the interaction “exactly.” As part of protocol, Bair copied the customer’s driver’s license. The customersigned the financing form
as Michael Avis. When Bair later provided a statementforthe police, he wrote thatthe customerwas “a medium build NativeAmerican male.” By Native American, Bair “meant [the customer] was darkercomplexion than [himself],
some sort ofAsian type descent.” While in the courtroom, Bair identified Lou as the customer he had helped. Bair acknowledged that Lou looked differentthan the other people atthe defense table. Aftera recess, Lou’s defense counsel stated forthe record that she saw Bair in the hallway before officers brought Lou into the courtroom and therefore believed that Bair had seen Lou in handcuffs priorto making his in-court identification. Afterthe witnesses testified, Lou moved to strike the in-court identifications. Lou argued thatthe identificationsviolated due process because the combination of (1) the witnesses seeing him in restraints and escorted, and
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(2) him being the only person atthe defense table matching the witnesses’ descriptions, rendered the identification procedures unnecessarily suggestive. The court denied Lou’s motion. Atthe close ofthe State’s case, the court dismissed count 1 (leading organized crime) due to insufficient evidence and counts 9 and 10 (seconddegree identitytheft and forgery) for lackofvenue. On February26, 2018, thejury acquitted Lou ofcount 8 (trafficking in stolen property) butfound him guilty on the remaining charges. Lou appeals. II. ANALYSIS A. In-Court Identifications Lou argues thatthe two in-court identificationsviolated his federal rightto due process because the witnesses saw him in handcuffs and escorted by officers outside ofthe courtroom priorto the identifications and because he was the only person matching the descriptions ofthe suspect atthe defense table. Advancing several arguments, the State claims no due process violation occurred. We conclude that Lou’s claim fails because the identifications bore sufficient indicia of reliability. This issue involves the admission ofevidence, which we reviewforabuse ofdiscretion.1 State v. Birch, 151 Wn. App. 504, 514, 213 P.3d 63(2009).

1 Though Lou did notaddressthe standard of review in his briefing, at oral argument he contended thatwe should reviewthis issue de novo. Wash. Court of Appeals oral argument, Statev. Lou, No. 783467 (Jan. 16, 2020), at 1 mm., 51 sec. though 2 mm., 27 sec. (on filewith court). Butthis would contradictthe case lawdirectly addressing this issue. ~ Birch, 151 Wn. App. at 514 (reviewing a due process challenge to an in-court identification foran abuse ofdiscretion).
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“Atrial court abuses its discretion when it exercises its discretion in a manifestly unreasonable manner or bases its decision on untenable grounds or reasons.” Birch, 151 Wn. App. at 514. An out-of-court procedure violates due process if it is impermissibly suggestive such that it is substantially likelythat irreparable misidentification will
occur. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58(2002). Courts use a two-part analysis to determine whetheran identification violated due process. See Birch, 151 Wn. App. at 514. Underthis analysis, the party challenging the identification first bears the burden ofshowing thatthe procedurewas impermissiblysuggestive. Vickers, 148 Wn.2d at 118. Ifthe party makesthis initial showing, the courtthen considers whether, based on the totality ofthe circumstances, the procedure “created a substantial likelihood of irreparable misidentification.” Vickers, 148 Wn.2d at 118. In deciding this factor, courts considerwhether, despite the suggestiveness, the identification contained sufficient indicia of reliability. State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002). To this end, courts analyze: (1) the opportunity ofthe witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of thewitness’s priordescription ofthe criminal; (4) the level ofcertainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Birch, 151 Wn. App. at 514.

5No. 78346-7-116 Assuming, without deciding, thatthe identifications were impermissibly suggestive,2 Lou’s due process claim fails because the identifications contained sufficient indicia of reliability. Here, Giske helped the man he identified as Lou with purchasing equipmentfor20-25 minutes. As such, he had close contactwith the customer foran extended period oftime. Priorto his in-court identification, he described the person as “approximately 5’8” orso, 180 to 185 pounds, fit orstocky build and [C}aucasian or Oriental.” And Lou’s Judgment and Sentence describes him
as 510” tall, 180 pounds in weight, and having black hairand brown eyes. Giske furthertestified that he was “100 percent sure” that Lou was the customer he helped that day. Bair also spent an extended period oftime at close contactwith the man he identified as Lou in court. In total, he spent between 30 minutes and an hour helping with financing. Bairdescribed the customer as “a medium build Native American male,” though he latertestified that “Native American” was how he described people with darkerskin than his own. Bairtestified that he could “recollect exactly” his interaction with the customer. Though certain facts suggested thatthe witnesses could be mistaken in their identifications of Lou, the shortcomings oftheir identifications wentto the weight ofthe evidence ratherthan its reliability. Birch, 151 Wn. App. at 515.

2 For purposes ofthis opinion, we also assume, without deciding, thattherewas improperarrangement by lawenforcement. See Perryv. New Hampshire, 565 U.S. 228, 242, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012) (holding thatthe Due Process Clause is implicated onlywhen the identification is procured under unnecessarilysuggestive circumstances arranged by lawenforcement). 6No. 78346-7-117

Because both in-court identifications of Lou contained sufficient indicia of reliability, we conclude the trial court did not abuse its discretion by admitting them. B. IneffectiveAssistance ofCounsel Lou asserts that his trial counsel performed ineffectively byfailing to renew the motion to severor move fora newtrial afterthe court dismissed counts 1, 9, and 10, and by not requesting an instruction to limitthejury’s consideration ofthe evidence relating to the dismissed counts. The State asserts that Lou cannot establish the elements ofan ineffective assistance claim. We agree with the State. Foronly counts 1, 9, and 10 the State presented evidence ofthree fraudulenttransactions:

• A man and a woman entered a Washington Tractor store in Snohomish on July 1, 2016. Thewoman filled outa creditapplication to purchase two generators. The man appeared to be of “island descent,” had brown hair, and was “[pjrobably six-foot to six-foot two.” The employee helped the woman load the generators into a baby blue hatchback-style vehicle.

• After impounding Lou’svehicle, detectivesfound paperwork issued by lssaquah Honda/Kubota containing the name Dana Marler.

• On June 8, 2016, an employee at a Washington Tractor store in Aberdeen helped a customer who “was about 5’lO”, 5’ll” or so, white, you know, white complexion, dark brown hair, bitoffacial hair” with a transaction to purchase equipment. The transaction turned out to be fraudulent. The employee could not identify anyone in a photo montage as the customer he had helped. At trial, the employee described the customer as of “possibly Asian descent or maybe white Asian, some kind ofmix.”~

~The State does not arguethatthis evidence related to any countotherthan 1, 9, and 10.
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Atthe end ofthe State’s case, the court dismissed counts 1, 9, and 10. Lou’s attorney did not renewthe motion to sever, move fora mistrial, or request a limiting instruction. An ineffective assistance ofcounsel claim involves mixed questions of law and factthatwe review de novo. State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842 (2018). Washington imposes atwo-pronged testfordetermining whether a defendant received constitutionallysufficient representation. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Underthis test, the defendant bears the burden ofshowing both deficient performance and resulting prejudice. Estes, 188 Wn.2d at457-58. An attorney’s performance is deficient “if itfalls ‘below an objective standard of reasonableness based on consideration ofall the circumstances.” Estes, 188 Wn.2d at 458 (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). “[S]crutiny ofcounsel’s performance is highlydeferential and courts will indulge in a strong presumption of reasonableness.” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To show prejudice, the defendant must demonstrate a reasonable probability that, had theircounsel performed sufficiently, the outcome ofthe proceedings would have been different. Estes, 188 Wn.2d at458. A reasonable probability “is a probability sufficientto undermine confidence in the outcome.” Estes, 188 Wn.2d at458 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984). Applying these standards, we conclude that Lou’s ineffective assistance ofcounsel claim fails.
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Lou first argues that his counsel should have renewed the motion to sever afterthe court dismissed counts 1, 9, and 10. But regarding the question of deficient performance, counsel need not pursue strategies that reasonably appear unlikelyto succeed. State v. Brown, 159 Wn. App. 366, 371, 245 P.3d 776 (2011). Here, the court had twice before denied Lou’s motion to sever. When the courtfirst denied the motion, itfound that Lou had failed to demonstrate that a singlejurytrial would result in undue prejudice. Given the court’s previous denials of his motions to severand its finding that a single trial would not cause undue prejudice, Lou’s attorney could have reasonably believed thatthe courtwould have denied yet another motion to sever. As such, Lou’s attorney did not perform deficiently byfailing to renewthe motion to sever. Lou next claims he received ineffective assistance ofcounsel because his attorney did not move fora mistrial afterthe court dismissed counts 1, 9, and 10. Butthis claim alsofails because Lou cannot show his attorney’s failure to move fora mistrial constituted deficient performance. To obtain a mistrial, Lou would have had to showthat nothing the court could have said ordone would have remedied the harm to him. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172 (1992). Given this high bar, Lou’s attorney again could have reasonably believed thatthe courtwould have denied a motion fora mistrial. See Brown, 159 Wn. App. at 371. Thus, Lou fails to satisfythe deficient performance prong as it relates to his counsel’s failure to move fora mistrial. Finally, Lou claims that his counsel was ineffective because she did not request a limiting instruction afterthejury heard evidence related to three
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uncharged fraudulenttransactions. But Lou cannot showthatthis constituted deficient performance. Before the court instructed thejury, Lou’s counsel was presumably aware thatthe courtwould provide a limiting instruction to evaluate each count separately. And indeed, the court did so: the instruction provided that 

### “[a] separate crime is charged in each count. You must decide each count separately. Yourverdict on one count should not control yourverdict on any othercount.” The court additionally instructed thejuryto not consider charges 1, 9, and 10 forany reason. Jurors are presumed to followthe court’s instructions. State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015). To be sure, an additional limiting instruction would have potentially emphasized the evidence related to the three uncharged transaction. Thus, we can presume thatthe decision notto request one was legitimate trial strategy. State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (finding that lawyer’s failure to request limiting instruction was tactical). “Deficient performance is not shown by matters that go to trial strategy ortactics.” State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Additionally, as to prejudice, because the court gave these two instructions, Lou cannot showthatthe lack ofa third limiting instruction prejudiced him. In light ofthe foregoing, Lou’s claims of ineffective assistance ofcounsel fail.C. Legal Financial Obligations Lou seeks to have the $200 filing fee and $100 DNAfee stricken from his judgment pursuantto State v. Ramirez, 191 Wn.2d 732, 739, 426 P.3d 714
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(2018). Ramirez, decided afterthe trial court imposed the fees in this case, holds thattrial courts may not impose discretionary costs on an indigent criminal defendant. 191 Wn.2d at 746. Here, the trial court recognized Lou’s indigence when it allowed him to pursue his appeal at public expense. The $200 criminal filing fee is discretionary. Ramirez, 191 Wn.2d at 748. Additionally, the $100 DNAsampling fee is discretionary ifthe State has already collected an offender’s DNA because ofa priorconviction. RCW43.43.7541. Lou’s Judgment and Sentence recognized that he had priorconvictions and thatthe State had already collected a DNA sample from him. The State properly concedes this issue. Affirmed exceptto remand to strike criminal filing and DNAfees from the Judgment and Sentence.

WE CONCUR:

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