IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47610-0-II

Respondent,

v.

AUDRA MICHELLE MINIER, UNPUBLISHED OPINION

Appellant.

JOHANSON, J. — Audra M. Minier appeals her convictions for third degree assault and 

third degree theft following a bench trial. She argues that the trial court erred in denying her 

motion to dismiss after a police witness was observed talking to three state witnesses. She also 

argues that defense counsel provided ineffective assistance because he failed to move to exclude 

witnesses under ER 615 before this alleged misconduct occurred. In a statement of additional 

grounds for review1(SAG), Minier further contends that she received ineffective assistance of 

counsel on several additional grounds.2

 

1 RAP 10.10.

2 Minier also assigns error to several of the bench trial findings of fact and conclusions of law, but 

she presents no argument related to these assignments of error. Accordingly, we do not address 

these assignments of error. 

Filed

Washington State

Court of Appeals

Division Two

August 30, 2016
No. 47610-0-II

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Because the trial court found that no prejudice had occurred and the record supports that 

finding, we hold that (1) the trial court did not err when it denied Minier’s motion to dismiss and 

did not impose any lesser sanction, and (2) Minier cannot establish ineffective assistance based on 

her counsel’s failure to move to exclude witnesses. We further hold that Minier’s ineffective 

assistance of counsel assertions in her SAG either have no merit or are outside the record and 

cannot be addressed. Thus, we affirm.

FACTS

I. BACKGROUND

On January 21, 2014, while at a local craft store, Minier placed several items in a shopping 

cart, concealed some of the items with her coat, placed other items in or under a bag she had 

brought into the store, and left the store without paying for this merchandise. When the store’s 

security officer, Sherilyn Eaton, confronted Minier in the parking lot, Minier was uncooperative, 

belligerent, and aggressive. When Eaton attempted to physically detain her, Minier resisted and 

the two women fell to the ground. At some point during this physical altercation, Minier bit 

Eaton’s arm causing it to bleed. 

Several witnesses, including store employee Abby Crawford and two women, Cassidy 

Lucas and Jennifer Hill, who were shopping in the area, observed the incident. Vancouver Police 

Officer Ronald Stevens responded to the incident, interviewed witnesses, and took photographs of 

Eaton’s bite injury. 

The State charged Minier with third degree assault and third degree theft. Minier pleaded 

not guilty and waived her right to a jury trial. 
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II. BENCH TRIAL

Stevens, Crawford, Eaton, Lucas, and Hill testified for the State. They testified consistent 

with the above facts.

Minier was the only defense witness. She asserted that (1) she believed she had taken all 

of the merchandise out of her cart before leaving the store, (2) she was not resisting Eaton but 

rather just attempting to leave because Eaton had no authority to stop her, and (3) she did not bite 

Eaton and Eaton’s injury was from her arm striking Minier’s mouth as they fell. 

During the course of the trial, several witnesses and the trial court viewed a short, 

approximately 30-second video that Minier had taken of the incident on her cellular telephone. 

Apparently because of technical issues, each viewer watched the video on a tablet rather than the 

trial court’s audio visual equipment. 

After Stevens and Crawford had testified, defense counsel advised the trial court that 

Minier’s fiancé, James Henline, had been in the hallway and had “overheard” Stevens, who had 

already testified, “discussing particulars of the event that day” with other witnesses.3 Report of 

Proceedings (RP) (April 27, 2015) at 65. Defense counsel asked that the trial court bring in the 

witnesses and request that they refrain from discussing the case until they have testified. He then 

moved for a mistrial “based on witness coercion.” RP (April 27, 2015) at 65.

The trial court brought in the witnesses, including Stevens, from the hallway and told them 

about the defense’s concern. Under oath, Stevens and three other unidentified witnesses swore 

that they had not discussed this case. 

 

3 Defense counsel did not identify who these witnesses were. But Henline’s testimony during the 

offer of proof suggests it was three of the four other state witnesses. 
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Defense counsel then asked the trial court to allow an offer of proof from Henline. Henline 

testified that when he left the courtroom, he overheard the officer and three female witnesses 

discussing this case. He stated that he heard the officer “speaking about locations in the parking 

lot, where people were,” and, later, “a statement to the effect of bite and another statement of a 

parking lot.” RP (April 27, 2015) at 69. Defense counsel then moved for dismissal with prejudice, 

arguing that Stevens’s discussion of the case with other witnesses was “highly prejudicial” to 

Minier.4 RP (April 27, 2015) at 70.

The trial court denied the motion to dismiss. It then commented,

I don’t believe there’s an adequate showing of prejudice that would be 

involved here, not only from the testimony that was provided -- I don’t believe

there’s an adequate basis for that. But also, there wasn’t a request from the parties 

to even exclude witnesses from the courtroom prior to starting the trial necessarily 

either.

The witnesses have been outside, but there wouldn’t necessarily be a basis 

for precluding them from even hearing the testimony that’s been [presented] today, 

unless you have a different position on that, [defense counsel], than what I’m aware 

of.

RP (April 27, 2015) at 71. Defense counsel did not object to this ruling, but he requested that the 

trial court instruct the witnesses be excluded. The trial court granted defense counsel’s request 

and excluded the witnesses from the courtroom from that point forward. After this ruling, Eaton, 

Lucas, and Hill testified for the State. 

The trial court found Minier guilty of third degree theft and third degree assault. Minier 

appeals her convictions. 

 

4 Defense counsel did not request any lesser sanction, such as exclusion of any witnesses.
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ANALYSIS

I. DENIAL OF MOTION TO DISMISS

Minier first argues that the trial court erred when it denied her motion to dismiss based on 

governmental misconduct.5 Because Minier fails to establish that Stevens’s contact with the other 

witnesses was prejudicial, these arguments fail.

Although Minier does not expressly state that she was entitled to dismissal based on 

governmental misconduct under CrR 8.3(b), defense counsel’s motion to dismiss was apparently 

under CrR 8.3(b), and so we will consider this issue under that rule. We review a trial court’s 

denial of a motion to dismiss under CrR 8.3(b) for a manifest abuse of discretion. State v. 

Everybodytalksabout, 145 Wn.2d 456, 478, 39 P.3d 294 (2002). The trial court abuses its 

discretion if the decision is manifestly unreasonable or is based on untenable grounds. State v. 

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). 

CrR 8.3(b) provides that the trial court “may dismiss any criminal prosecution due to 

arbitrary action or governmental misconduct when there has been prejudice to the rights of the 

accused which materially affect the accused’s right to a fair trial.” To support dismissal under CrR 

8.3(b), the defendant must show by a preponderance of the evidence both (1) arbitrary action or 

governmental misconduct and (2) actual prejudice affecting the defendant’s right to a fair trial. 

 

5 She also suggests that if dismissal was not appropriate, the trial court should have imposed a 

lesser sanction as described in State v. Skuza, 156 Wn. App. 886, 235 P.3d 842 (2010). But Skuza

is inapplicable here because it addresses a violation of an exclusion order and there was no 

exclusion order here. 156 Wn. App. at 896. To the extent Minier may be suggesting that the trial 

court could have imposed a lesser sanction under CrR 8.3(b), she does not support this assertion 

with any argument or citation to authority. Thus, we decline to consider whether the trial court 

should have considered a lesser sanction under CrR 8.3(b).
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Rohrich, 149 Wn.2d at 654. Dismissal under CrR 8.3(b) is an extraordinary remedy. State v. 

Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003).

Minier argues that Officer Stevens engaged in misconduct by talking to the other witnesses 

about the case while being aware that it was unacceptable to discuss testimony with the other 

witnesses. Even presuming misconduct, Minier fails to establish that the trial court abused its 

discretion when it found no prejudice.

Minier argues that “the prejudice is evident by virtue of the alleged contact with witnesses 

itself.” Br. of Appellant at 12. But Minier cites no authority stating that the trial court had to 

presume prejudice merely because Officer Stevens had contact with the witnesses. CrR 8.3(b) 

requires Minier to show that prejudice affected her right to a fair trial. Rohrich, 149 Wn.2d at 654. 

The record provides only vague references to what Officer Stevens potentially said to the 

witnesses—Henline testified that he only heard the officer “speaking about locations in the parking 

lot, where people were” and, later, “a statement to the effect of bite and another statement of a 

parking lot.” RP (April 27, 2015) at 69. Minier does not, however, explain how Officer Stevens’s 

statements potentially influenced the remaining witnesses’ testimonies. Nor is Henline’s vague 

testimony sufficient to establish that these statements could have potentially influenced the 

witnesses. 

Furthermore, if Officer Stevens’s statements to the witnesses influenced their testimonies, 

Minier had the opportunity to impeach the witnesses with their prior statements to law enforcement 

and/or written reports, so any risk of prejudice was remote. Based on the information presented 

to the trial court and the fact Minier could have impeached these witnesses’ trial testimony, the 
No. 47610-0-II

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trial court did not abuse its discretion when it found there was no prejudice and denied Minier’s 

motion to dismiss.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

A. LEGAL PRINCIPLES

Minier next raises several ineffective assistance of counsel claims. The Sixth Amendment 

to the United States Constitution and article I, section 22 of the Washington State Constitution 

guarantee the right to effective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 

1260 (2011). In order to show that she received ineffective assistance of counsel, a defendant must 

show that (1) defense counsel’s conduct was deficient and (2) the deficient performance was 

prejudicial. Grier, 171 Wn.2d at 32 (quoting State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 

816 (1987)).

“The threshold for the deficient performance prong is high, given the deference afforded 

to decisions of defense counsel in the course of representation.” Grier, 171 Wn.2d at 33. “‘When 

counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance is not 

deficient.” Grier, 171 Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 

(2009)). We review ineffective assistance claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 

204 P.3d 916 (2009).

B. FAILURE TO REQUEST ER 615 INSTRUCTION

Minier argues that defense counsel provided ineffective assistance because he failed to 

move to exclude witnesses under ER 615. We disagree.

ER 615 provides, “At the request of a party the court may order witnesses excluded so that 

they cannot hear the testimony of other witnesses.” “The intent of ER 615 is ‘to discourage or 
No. 47610-0-II

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expose inconsistencies, fabrication, or collusion.’” State v. Skuza, 156 Wn. App. 886, 896, 235 

P.3d 842 (2010) (quoting KARL B. TEGLAND, 5A WASHINGTON PRACTICE: EVIDENCE LAW AND 

PRACTICE § 615.2, at 623 (5th ed. 2007)). Conversation between excluded witnesses that promote 

fabrication or collusion may violate an ER 615 order. Skuza, 156 Wn. App. at 897. But a 

conversation that does not contravene this intent does not violate an ER 615 order. See Skuza, 156 

Wn. App. at 897.

Even if defense counsel should have requested an ER 615 instruction, Minier cannot 

establish prejudice on this record. As discussed above, Minier has failed to show that the contact 

here influenced testimony or promoted fabrication or collusion. Thus, this argument fails.

C. SAG ISSUES

In her SAG, Minier presents several additional ineffective assistance of counsel claims. 

These claims either fail or relate to matters outside the record that we cannot consider.

1. DEFENSE CLOSING ARGUMENT

Minier appears to assert that defense counsel failed to address certain issues in her closing 

argument. First, she contends that defense counsel failed to “not[e]” that certain aspects of Eaton’s 

surveillance and confrontation of Minier, specifically Eaton’s failure to keep Minier under constant 
No. 47610-0-II

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surveillance6and Eaton’s engaging in a physical confrontation with Minier,7 were not consistent 

with store policy or procedures. SAG at 1. She then contends that defense counsel failed to 

“not[e]” a variety of what she considers to be contradictory evidence.8 SAG at 2.

Defense counsel’s closing argument focused on Minier’s assertion that she was unaware 

that the merchandise was still in her shopping cart and that she was only reacting to Eaton’s 

 

6 Eaton testified that “four elements” had to exist before she could call an incident a shoplifting. 

RP (April 27, 2015) at 74. She had to (1) either watch the subject take the item from the shelf or 

otherwise know it is a store product, (2) keep the subject under constant surveillance, (3) look for 

concealments, and (4) allow the subject time to buy the item before they leave the store. While 

watching Minier in the store, Eaton was unable to see Minier when she moved to a different section 

of the store. 

7 Eaton testified that the store’s policy allowed her to apply force only if the suspect started to fight 

or push back; in which case, she had the right to get the suspect under control and take them inside 

the store. 

8 Specifically, Minier asserts that defense counsel failed to point out the following allegedly 

contradictory evidence: (1) Eaton’s testimony that she could see the plastic organizers in Minier’s 

cart even though Eaton had first testified that Minier had attempted to conceal these items, (2) 

Eaton’s testimony that she did not contact Minier until after Crawford was present compared to 

Crawford’s testimony that Eaton was with Minier in the parking lot when Crawford arrived, (3) 

Eaton’s testimony that Minier threw a quilt kit and some fabric at her when other evidence shows 

that these items were discovered in a duffle bag after Minier was restrained, (4) Eaton’s testimony 

that she had handcuffed Minier’s right wrist and that Minier was preventing her from putting the 

other handcuff on by flailing around with her right arm when the video allegedly showed no 

handcuff on Minier’s right wrist, (5) Eaton’s testimony that she wrapped her arm around Minier’s 

chest when the video allegedly showed that Eaton put her arm around Minier’s neck, and (6) 

Eaton’s testimony that Minier bit her arm when the video allegedly showed Minier “grimacing 

with her teeth closed” and trying to remove Eaton’s arm from around her (Minier’s) throat. SAG

at 2.

We note that Minier overstates what the video showed. First, it shows Eaton was 

restraining Minier by holding her across her upper chest, not her neck. Second, although there is 

one brief shot of Minier’s apparently grimacing mouth, the video then shows just a blur of 

undefined activity during which there would have been ample time for Minier to bite Eaton. And 

third, at no point does the video show a view of Minier’s right arm sufficient to see whether there 

was or was not a handcuff on that arm. 
No. 47610-0-II

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unjustified or unlawful attempts to take her (Minier) into custody and did not bite Eaton. Eaton’s 

alleged failure to follow store policy or procedure and the possible inconsistent testimony and 

evidence Minier describes were not highly relevant to these arguments. Thus, even assuming that 

Minier has correctly characterized the evidence, it would have been a reasonable tactical decision 

not to discuss these facts in closing argument. Furthermore, Minier presented evidence about these 

facts and the trial court, which was the fact finder in this case, was aware of these facts when it 

considered the evidence, so Minier does not show how defense counsel’s failure to further discuss 

these issues would have been prejudicial. Thus, Minier does not establish ineffective assistance 

of counsel on this ground.

Second, Minier contends that defense counsel was ineffective for failing to argue that the 

effort it would have taken for her to retrieve her phone and start recording was inconsistent with 

her having been flailing her arms around and struggling with Eaton. But any facts related to what 

it would have taken for Minier to access her phone and start recording is outside this record, so we 

do not consider this claim further. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

Third, Minier contends that counsel failed to note that the video showed that she was 

speaking calmly, requesting to be released, and was not combative and that Eaton was the 

aggressor. Although the video does not initially show that Minier was combative, it is a short 

video showing only a portion of her interactions with Eaton. At the start of the video, Minier was 

already being physically restrained by Eaton, so it was not relevant to whether Minier was being 

combative before this point. And the video is in tight focus and does not show which of the two 
No. 47610-0-II

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women started the struggle that culminated with the two women falling to the ground. Again, 

given the focus of defense counsel’s closing argument, the relatively low evidentiary value of the 

video, and the fact the trial court had this evidence before it, this appears to have been a reasonable 

tactical decision that was not prejudicial.

2. PHOTOGRAPHIC EVIDENCE

Minier also appears to assert that she received ineffective assistance of counsel because 

defense counsel failed to object to the trial court and State reviewing images of the bite mark and 

viewing the scar when defense counsel had never seen this evidence.9 Whether defense counsel 

had seen this evidence is outside the record. Accordingly, we decline to address this claim. 

McFarland, 127 Wn.2d at 335.

3. VIDEO EVIDENCE

Minier next contends that defense counsel provided ineffective assistance of counsel by

failing to ensure that the images and video that Henline had prepared for the trial were compatible 

with the trial court’s media systems. She seems to assert that defense counsel should not have 

relied on Henline to prepare the exhibits and that because the court and witnesses were able to 

watch the video only on a small screen, they were unable to watch the video on a television or 

larger monitor. 

 

9 During Stevens’s testimony, the State moved to admit two photographs of Eaton’s injury. When 

the State gave the photographs to Stevens, it asked him to hold them up so defense counsel could 

see what exhibits he was examining. The trial court admitted these photographs; defense counsel 

did not object. 
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Whether defense counsel obtained the video or other documentation from Henline or 

consulted with Henline about the proper format for these exhibits is outside the record. Thus, we 

decline to further address whether defense counsel should have obtained the evidence in some 

other way. McFarland, 127 Wn.2d at 335.

Concerning whether defense counsel should have ensured that the witnesses and trial court 

could have viewed the video on a larger screen, the record shows they viewed the video on a tablet. 

Based on a review of this video, it does not appear that they would have seen anything more clearly 

if they had been able to view in a larger format. And regarding whether the witnesses or the trial 

court should have been able to pause the video, there is nothing in the record suggesting that any 

witness or the trial court expressed any desire to do so. Thus, Minier has not established any 

prejudice.

4. MISIDENTIFICATION OF MINIER’S ROOMMATE

Finally, Minier argues that defense counsel provided ineffective assistance by failing to 

“point[ ] out” that the name of her roommate was incorrect in some of the documentation. SAG

at 3. Although the record shows that defense counsel once referred to Minier’s roommate by an 

incorrect name, there is nothing in the record showing that defense counsel obtained this 

information from any documentation or whether he just misspoke. Accordingly, Minier does not 

establish ineffective assistance on this ground.
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Because the trial court did not err in denying Minier’s motion to dismiss and not imposing 

lesser sanctions and Minier fails to establish ineffective assistance of counsel, we affirm Minier’s 

convictions.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

JOHANSON, J.

We concur:

BJORGEN, C.J.

MAXA, J.