IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 58510-3-II

Respondent,

v. UNPUBLISHED OPINION

ERIC CHARLES BANFIELD,

Appellant.

CHE, J. — Eric Banfield appeals his convictions for residential burglary, felony violation 

of a court order, and misdemeanor violation of a court order, all as crimes of domestic violence

designation.

A no-contact order protected Kimberly Curtis from Banfield. Curtis’s neighbor 

witnessed Banfield shoving Curtis into an apartment stair railing. When officers arrived, they 

heard a male voice in Curtis’s apartment and received her permission to search her residence. 

An officer opened a wallet and saw Banfield’s identification card. Eventually, they found 

Banfield in a locked storage closet on Curtis’s balcony. 

Banfield objected to several continuances leading up to his trial, which occurred 23 

months later. At trial, Curtis testified that she was sure Banfield caused her head to hurt 

“[b]ecause it happened quite often.” Based on that statement, Banfield moved for a mistrial, 

which the trial court denied. Banfield’s counsel cross-examined only one of the State’s six 

witnesses. A jury found Banfield guilty of all charges. 

Filed

Washington State

Court of Appeals

Division Two

October 1, 2024
No. 58510-3-II

2

Banfield argues (1) the trial court abused its discretion by denying a motion for mistrial

following Curtis’s testimony because it should have been excluded under Evidence Rule (ER)

404(b), (2) he received ineffective assistance of counsel because his counsel did not subject the 

State’s case to meaningful adversarial testing and did not move to suppress evidence obtained 

from the warrantless search of his wallet, and (3) the trial court violated his right to a speedy trial 

because of the 23-month delay to his trial. Banfield also requests we strike the crime victim 

penalty assessment (VPA) and domestic violence assessment (DVA) fees. 

We hold (1) the trial court did not err in denying Banfield’s motion for mistrial based on 

Curtis’s testimony, (2) Banfield fails to demonstrate that he was denied the effective assistance 

of counsel, and (3) the trial court did not violate Banfield’s right to a speedy trial under the 

United States and Washington Constitutions. Furthermore, we remand to the trial court to 

evaluate indigency under the statutory definition and consider whether to impose the VPA fee, 

and to strike the DVA fee. 

We affirm Banfield’s conviction but remand to the trial court to consider whether to 

impose the VPA fee under RCW 10.01.160(3) and to strike the DVA fee.

FACTS

BACKGROUND

Banfield and Curtis dated for about ten years and had a “stormy” relationship. Rep. of 

Proc. (RP) at 220. In March 2020, the Kelso Municipal Court entered a pretrial “Domestic 

Violence No-Contact Order” prohibiting Banfield from, among other things, (1) causing, 

attempting, or threatening to assault or cause bodily injury to Curtis, (2) contacting Curtis, and 
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(3) knowingly entering, remaining, or coming within 1,000 feet of Curtis’s residence.1 Clerk’s 

Papers (CP), Pl’s Ex. 1, PDF at 190-92. It remained in effect until the Kelso Municipal Court 

case concluded. The no-contact order stated, “Based upon the record . . . the court finds that 

[Banfield] has been charged with, arrested for, or convicted of a domestic violence offense, that 

the defendant represents a credible threat to the physical safety of [Curtis], and the court issues 

this Domestic Violence No-Contact Order . . . to prevent possible recurrence of violence.” CP,

Pl’s Ex. 1, PDF at 191.

In August 2020, Curtis’s neighbor called the police after Curtis knocked on her door 

asking for someone to call for help. The neighbor saw Banfield “shov[ing]” Curtis into an 

apartment stair railing, which looked painful because she saw Curtis rubbing her arm. RP at 217.

Police officers Austin Foley, Shayda Panah, and John Dahlke responded to the neighbor’s call. 

Officer Foley had previously responded to Curtis’s apartment and learned of a no-contact order 

between Curtis and Banfield. The officers confirmed there was an active no-contact order in 

place. Officer Foley heard “a distinct male voice” inside Curtis’s apartment. RP at 238. Officer 

Panah heard two voices arguing and the male voice sternly saying, “You called the f[***]ing

cops.” RP at 254. 

The officers announced their presence and after several minutes of knocking on Curtis’s

door, Curtis answered. She was upset, crying, shaking, and appeared intoxicated. The officers

noticed marks on Curtis’s face, one under each of her eyes and blood on her lip. Curtis gave the 

officers permission to search her apartment. Officer Panah asked Curtis if she was by herself 

 

1 The trial court admitted the no-contact order as an exhibit at trial.
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and she responded that Banfield was in the apartment with her. Curtis also told Officer Panah 

that she was in “so much pain and that she got hit so hard.” RP at 258. 

During their initial search of the apartment, the officers found duffel bags with men’s 

clothing, men’s shoes, and a men’s wallet. Officer Panah asked Curtis who the wallet belonged 

to and she said it was Banfield’s. Officer Panah looked inside the wallet and found Banfield’s

Washington identification card. The officers did not find any other occupant but noted a locked 

storage closet on the balcony of Curtis’s second story apartment. When they knocked on the 

locked door, Officer Dahlke heard “some rattling in the door” “like someone bumped it.” RP at 

268-69. Officer Foley visually surveyed the grass underneath the balcony for footprints or 

disturbances to determine if someone had jumped off the balcony, but he did not find any. 

Curtis gave the officers permission to open the locked storage closet door. While Officer 

Panah was speaking with Curtis, Officers Foley and Dahlke attempted to open and search the 

locked storage closet. The officers announced their presence multiple times, and eventually, 

Officer Dahlke used a knife to open the door. They found Banfield, dressed only in shorts, 

sitting in the closet, and advised him that he was under arrest. Banfield was unresponsive to the 

officers’ directions. 

The State charged Banfield with residential burglary, felony violation of a court order, 

and misdemeanor violation of a court order, all as crimes of domestic violence. 

PROCEDURAL HISTORY

Banfield appeared in custody for his preliminary appearance on August 17, 2020. At his 

arraignment on August 27, he appeared out of custody, and the trial court set his trial date for
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December 15, 2020.

2

 Prior to December 15, the court reset the trial date to March 9, 2021, 

because of the COVID-19 pandemic.

3 Banfield objected to the COVID-19 related continuance

and to the tolling of his right to a speedy trial. Banfield’s counsel informed the court that 

Banfield would receive new counsel in January 2021 because he would be on paternity leave. 

At the readiness hearing on March 2, 2021, Banfield’s counsel, through stand-in counsel,

requested a continuance presumably because Banfield’s counsel was going on approved leave. 

See RP at 16. The court reset the trial date to June 8.

On June 1, the State requested a continuance because two material witnesses were 

unavailable for trial due to medical issues and family medical leave. The court determined there 

was good cause for a continuance. On June 10, the court reset the trial date to July 13. 

On July 1, Banfield’s counsel informed the court that a conflict of interest existed and 

requested the court to assign new counsel to Banfield’s cases. The court granted Banfield’s 

counsel’s request to withdraw. Banfield objected to the tolling of his right to a speedy trial.

On July 8, Banfield appeared with new counsel, and the court reset the trial date to 

September 13. Banfield objected to the appointment of new counsel because, while he filed a 

 

2 Banfield remained out of custody on this matter. Banfield was in custody on a different matter 

for a period during the pendency of this matter. 

3 Before and during Banfield’s case, the Cowlitz County Superior Court entered a series of 

emergency orders, which, among other things, suspended or struck and continued criminal jury 

trials “due to the serious danger posed by [COVID-19] which is an unavoidable circumstance.” 

The Washington Supreme Court issued similar orders during this time. CP at 193 (ord. #1), 237

(ord. #2), 252 (ord. #1-A), 327 (ord. #2-A), 343 (ord. #3-A); see also CP at 348-99 (ord. #4-A, 

5-A, 6-A, 6-A.1, 6-A.2, 6-A.3, 6-A.4, 6-A.5).
No. 58510-3-II

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bar grievance against his former counsel, he did not believe a conflict existed and was ready to 

proceed to trial. 

At a hearing on September 7, Banfield’s counsel requested a continuance due to the 

cessation of jury trials in response to COVID-19. The court determined there was good cause to 

continue the trial to November 30 because the court had suspended jury trials for the month of 

September in light of growing concerns about the COVID-19 pandemic.

At a hearing on November 23, the court reset the trial date to December 2. Banfield

failed to appear for trial on December 2 because he was experiencing health issues. The court 

found good cause to continue the trial to December 9.

On December 9, the court arraigned Banfield on an amended information. The court 

reset the trial date to February 8, 2022. Banfield objected to the tolling of his right to a speedy 

trial.

At a hearing on February 1, 2022, the court determined there was good cause for a 

continuance due to the COVID-19 pandemic and reset the trial date to April 19. 

On April 19, the court found good cause to continue the trial because the court did not 

have an available courtroom to hear Banfield’s case that week. On April 21, the court set a 

readiness hearing for May 3 and trial for May 10. 

On May 3, Banfield failed to appear at his readiness hearing. The court noted the failure 

to appear and struck the trial. 

On May 12, Banfield appeared and the court reset the trial date to June 28. 
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On June 28, the State requested a continuance because a material witness and her 

children tested positive for COVID-19. The court found good cause to continue the trial date to 

July 26. Banfield objected to the continuance. 

Trial began on July 26, 2022. 

MOTIONS IN LIMINE

The State moved to admit Curtis’s out-of-court statements to Officer Panah that her 

“head hurts so bad” and “[Banfield] hits so hard” as excited utterances. RP at 197. Banfield

moved to exclude any reference “coming from whatever witness that the State would be 

presenting” to prior or subsequent domestic violence incidents under ER 404(b).4 RP at 199. 

Both parties’ arguments focused on law enforcement testimony and did not include any 

discussion of Curtis’s testimony. 

The trial court ruled that law enforcement could testify that they were aware of the 

no-contact order and that they “ha[d] responded [to Curtis’s residence] before” but stated they 

could not specify how many times they had responded to Curtis’s residence in the past. RP at 

204. The court asked the parties if there was “[a]nything else that [they] need[ed] to discuss or 

deal with” and no party raised issues with Curtis’s testimony. RP at 204.

TRIAL AND MOTION FOR MISTRIAL

At trial, the witnesses testified consistently with the facts above. Additionally, Curtis

testified to the following:

 

4 Under ER 404(b), evidence of other crimes, acts, or wrongs is inadmissible to prove a person’s 

character in order to show that their actions conform with their character. In other words, 

character evidence is generally inadmissible for the purpose of showing a person’s propensity to 

commit a crime. 
No. 58510-3-II

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[PROSECUTOR] What did you say to law enforcement?

[CURTIS] I said my head hurt.

[PROSECUTOR] Did you say why your head hurt?

[CURTIS] I don’t recall.

[PROSECUTOR] Do you know why your head hurt?

[CURTIS] I’m sure it was from [Banfield].

[PROSECUTOR] Why are you sure that was from [Banfield]?

[CURTIS] Because it happened quite often.

[PROSECUTOR] But in this instance, did it happen then?

[CURTIS] Yes.

RP at 224-25. 

Banfield objected to Curtis’s testimony because the trial court’s ruling on the parties’ 

motions in limine allowed law enforcement to testify that they had responded to Curtis’s

apartment on at least one prior occasion and did not permit any further testimony about domestic

violence on any other occasion. The State argued that Curtis’s answer was nonresponsive and 

that it had quickly moved on “to not draw attention to that specific answer.” RP at 226.

Banfield did not dispute that it was a nonresponsive answer but moved for a mistrial, 

stating that Curtis’s response could not be addressed by a curative instruction because it would 

“just underscore” Curtis’s testimony. RP at 227. The trial court denied the motion, stating that it 

did not think there was any intention by the State to elicit information not permitted by the 

motions in limine; that the State quickly moved on after Curtis’s response; and that the jury was 

already aware that there was a no-contact order in place. Banfield declined a curative instruction

because he believed it would draw more attention to Curtis’s testimony. 

Of the State’s six witnesses, Banfield’s counsel cross-examined one witness and did not 

call any witnesses. 
No. 58510-3-II

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SENTENCING

A jury found Banfield guilty of residential burglary, felony violation of a court order, and 

misdemeanor violation of a court order, all as crimes of domestic violence. The trial court stated 

that it would “impose the mandatory minimum financial obligations, [and] waive anything that[]

[was] not mandatory.” RP at 388. 

Banfield appeals. 

ANALYSIS

Banfield argues (1) the trial court abused its discretion by denying a motion for mistrial 

following Curtis’s testimony because it should have been excluded under ER 404(b), (2) he

received ineffective assistance of counsel because his counsel did not subject the State’s case to 

meaningful adversarial testing and did not move to suppress evidence obtained from the

warrantless search of his wallet, and (3) the court violated his right to a speedy trial because of

the 23-month delay to his trial. Banfield also requests we strike the VPA and DVA fees. 

I. MOTION FOR MISTRIAL

Banfield argues the trial court erred when it denied his motion for a mistrial after Curtis

testified that she was sure Banfield caused her head to hurt “[b]ecause it happened quite often.”

RP at 224. Banfield contends that Curtis’s testimony was highly prejudicial such that he did not 

get a fair trial. We disagree.

A. Legal Principles

When it affirmatively appears that a criminal defendant’s substantial right was materially 

affected, the trial court may grant the defendant’s motion for a new trial based on several 

grounds, including an irregularity in the court proceedings that prevented the defendant from 
No. 58510-3-II

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having a fair trial. CrR 7.5(a)(5). While the decision to grant a new trial is discretionary, a new 

trial is required when there has been a prejudicial irregularity that cannot be remedied, such that 

“‘nothing short of a new trial can insure that the defendant will be tried fairly.’” State v. 

Lupastean, 200 Wn.2d 26, 36, 513 P.3d 781 (2022) (quoting State v. Gamble, 168 Wn.2d 161, 

177, 225 P.3d 973 (2010)). 

We review the trial court’s denial of a motion for mistrial for abuse of discretion. State v. 

Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A trial court abuses its discretion in denying 

a motion for mistrial only when “‘no reasonable judge would have reached the same 

conclusion.’” State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. 

Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711 (1989)). 

Trial courts have broad discretion to rule on irregularities during trial. State v. Wade, 186 

Wn. App. 749, 773, 346 P.3d 838 (2015). They are in the best position to determine whether an

irregularity caused prejudice. Id. An irregularity is prejudicial only if it affected the outcome of 

the trial. Hopson, 113 Wn. 2d at 284. 

When a trial irregularity has occurred, we determine its prejudicial effect by considering

(1) the seriousness of the claimed irregularity, (2) whether the irregularity was cumulative of 

other properly admitted evidence, and (3) whether it could have been cured with an instruction. 

Wade, 186 Wn. App. at 773. Courts have found serious irregularities where, for example, a party 

purposely violates a pretrial order or where the jury is exposed to inherently prejudicial 

inadmissible testimony. Gamble, 168 Wn.2d at 178; see also State v. Escalona, 49 Wn. App. 

251, 255-56, 742 P.2d 190 (1987). We reverse the trial court’s decision only if it is substantially 

likely that the irregularity affected the jury’s verdict. Wade, 186 Wn. App. at 773.
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B. Curtis’s Testimony Does Not Warrant a Mistrial 

First, we consider the seriousness of the claimed irregularity. Banfield contends Curtis’s

testimony violated the trial court’s ruling on a motion in limine because it was evidence of prior 

crimes, which implied Banfield had the propensity to commit the crimes charged. We disagree.

Banfield relies on State v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), for his 

contention that Curtis’s testimony warrants a mistrial, but his reliance is misplaced. In that case, 

the trial court granted the defense’s motion in limine to exclude any reference to the defendant’s 

prior conviction for the same crime, second degree assault while armed with a deadly weapon, a 

knife. Id. at 252. At trial, a witness testified that the defendant “already has a record and had 

stabbed someone [before].” Id. at 253. The trial court denied defense counsel’s motion for a 

mistrial. Id. Division One of this court reversed, holding that the trial court abused its discretion

in denying the motion for a mistrial. Id. at 257. The court concluded the testimony was an 

“extremely serious” irregularity because it was evidence of prior crimes, which is barred by ER 

404(b). Id. at 255. The court also noted that the testimony was particularly serious because of 

the scarcity of evidence against the defendant. Id. at 255-56. 

Unlike the unfairly prejudicial testimony in Escalona, Curtis’s testimony that she was 

sure that Banfield caused her head to hurt “[b]ecause it happened quite often” does not warrant a 

mistrial. RP at 224. First, it is unclear whether Curtis’s testimony violated the trial court’s 

pretrial ruling because the ruling was ambiguous. While Banfield’s pretrial motion appeared to 

include all of the State’s witnesses, the court ruled only that law enforcement could not specify 

how many times they had responded to Curtis’s residence in the past. After discussing law 

enforcement testimony, the trial court asked if there were other matters to discuss, and Banfield 
No. 58510-3-II

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did not mention Curtis’s testimony or seek a ruling specifically limiting Curtis’s testimony. 

Therefore, it is unclear whether the trial court’s ruling on Banfield’s motion in limine actually 

precluded Curtis’s testimony. 

But even if we agreed that Curtis’s testimony violated the trial court’s pretrial ruling, that

irregularity was not serious and had no prejudicial effect given the weight of the evidence against 

Banfield. A witness saw Banfield shove Curtis into a stair railing before the witness called the 

police, officers found Banfield dressed only in shorts in a locked closet on the balcony of 

Curtis’s apartment, officers found duffel bags with men’s clothing and shoes in Curtis’s

apartment, and Curtis told an officer that Banfield was inside the apartment. Thus, this factor 

does not weigh in favor of a mistrial. 

Second, we consider whether the irregularity was cumulative of other properly admitted 

evidence. Banfield argues that though the jury was aware of the no-contact order and that the 

police had been to Curtis’s apartment in the past, “there was no other evidence to the effect [that 

he perpetrated] chronic domestic violence.” Br. of Appellant at 18-19. To the extent that 

Curtis’s testimony indicated that she had had previous interactions with Banfield, it was 

consistent with her testimony regarding the active no-contact order that had been admitted into 

evidence. The no-contact order reflected that the Kelso Municipal Court issued the order “to 

prevent possible recurrence of violence” and because it found that Banfield “ha[d] been charged 

with, arrested for, or convicted of a domestic violence offense, [and] that [Banfield] represents a 

credible threat to the physical safety of [Curtis].” CP, Pl’s Ex. 1, PDF at 191. The no-contact 

order therefore provides some evidence of prior domestic violence. Because Curtis’s testimony, 
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to some degree, was cumulative of other properly admitted evidence, this factor does not weigh 

in favor of a mistrial. 

Third, we consider whether the irregularity could have been cured with an instruction. 

Banfield argues a jury instruction could not have cured the admission of the contested portion of 

Curtis’s testimony. We disagree. A trial court has broad discretion to cure trial irregularities 

resulting from a witness’s improper statements. Gamble, 168 Wn.2d at 177. The question is

whether the improper statements, when “‘viewed against the background of all the evidence,’”

were so prejudicial that the defendant did not get a fair trial. Id. (quoting State v. Thompson, 90 

Wn. App. 41, 47, 950 P.2d 977 (1998)). We presume that jurors follow the court’s instructions. 

State v. Weaver, 198 Wn.2d 459, 467, 496 P.3d 1183 (2021).

Here, Curtis’s testimony irregularity could have been cured with an instruction. Viewed 

against the background of all the evidence against Banfield, as discussed above, Curtis’s

statement was not so prejudicial that Banfield did not get a fair trial. Thus, this factor does not 

weigh in favor of a mistrial. 

Given the facts of this case, Curtis’s testimony irregularity did not cause prejudice to 

Banfield nor did it affect the jury’s verdict. Furthermore, the irregularity could have been 

remedied with an instruction. Thus, we hold that the trial court did not err in denying Banfield’s 

motion for mistrial based on Curtis’s testimony. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Banfield argues that he received ineffective assistance of counsel because his counsel did 

not move to suppress evidence obtained from the warrantless search of his wallet and did not 

subject the State’s case to meaningful adversarial testing. We disagree.
No. 58510-3-II

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A. Legal Principles

A criminal defendant has a right to effective assistance of counsel at every critical stage 

of the proceeding. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. United States v. Cronic, 

466 U.S. 648, 654, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). 

To prevail on a claim of ineffective assistance of counsel, Banfield must show both 

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Performance is deficient if it falls below an objective 

standard of reasonableness. State v. Bertrand, 3 Wn. 3d 116, 128, 546 P.3d 1020 (2024). We 

strongly presume that counsel’s performance was effective. Id. at 130. To rebut this 

presumption, a defendant bears the burden of showing there was no possible legitimate trial 

tactic that would explain counsel’s performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 

1260 (2011). 

To demonstrate prejudice, a defendant must show a reasonable probability that, absent 

the deficient performance, the outcome of the trial would have differed. Bertrand, 3 Wn.3d at 

129. It is not enough to merely show that errors had some conceivable effect on the outcome of 

the proceeding. Strickland, 466 U.S. at 693. If a claim of ineffective assistance of counsel fails 

to support a finding of either deficiency or prejudice, it fails, and a court need not address both 

components of the inquiry or approach the inquiry in a particular order. Id. at 697.

B. Motion to Suppress

We begin by addressing the prejudice component of the Strickland test. Banfield bears 

the burden of showing, based on the trial record, that the outcome of the trial would have 

differed but for counsel’s deficient performance—not moving to suppress the warrantless search 
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of his wallet. Bertrand, 3 Wn.3d at 129. He has not made this showing because the State 

presented overwhelming evidence linking Banfield to the crimes charged, as discussed above. 

Even if Banfield’s counsel successfully suppressed evidence obtained from the search of 

Banfield’s wallet, Banfield cannot show that it would have changed the outcome of the trial. 

Thus, we hold his ineffective assistance of counsel claims fails on the second prong of the 

Strickland test. In light of our determination, we need not address the deficient performance 

component of the Strickland test. Strickland, 466 U.S. at 697.

C. Meaningful Adversarial Testing

Banfield argues his counsel failed to subject the State’s case to meaningful adversarial 

testing by not cross-examining most of the State’s witnesses. He further argues that he does not 

need to show prejudice because it is presumed under Cronic. We disagree.

In Cronic, the United States Supreme Court recognized a narrow exception to 

Strickland’s holding that a defendant must show both deficient performance and resulting 

prejudice to prevail on an ineffective assistance of counsel claim. State v. McCabe, 25 Wn. App. 

2d 456, 462, 523 P.3d 271 (2023), review denied, 1 Wn.3d 1014 (2023). Cronic acknowledged 

that a defendant need not make a specific showing of prejudice where there has been “a denial of 

Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” 

Cronic, 466 U.S. at 659. This narrow exception applies when “‘counsel entirely fails to subject 

the prosecution’s case to meaningful adversarial testing.’” McCabe, 25 Wn. App. 2d at 462

(quoting Cronic, 466 U.S. at 659). In other words, this exception is limited to cases where 

defense counsel was absent or entirely uninvolved. Id. at 463. 
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Banfield contends that we should apply the exception in Cronic. For us to do so, 

Banfield’s counsel must have been absent or entirely uninvolved, but Banfield makes no such 

claim. Moreover, his counsel clearly participated in the trial, even if not in a manner that was 

satisfactory to Banfield. Although Banfield’s counsel cross-examined only one of the State’s six 

witnesses and did not call its own witnesses, counsel’s performance did not deprive Banfield

entirely of a defense. Banfield’s counsel was actively involved during the pretrial stage and at 

trial, responding to the State’s motions in limine, arguing a defense motion in limine, and 

moving for a mistrial. Banfield’s counsel held the State to its burden and focused the defense on 

whether the State proved the burglary charge. Banfield’s counsel also appeared to make a 

strategic decision regarding whether to cross-examine several eyewitnesses, all of whom saw 

Banfield with Curtis or found Banfield at Curtis’s residence on the date in question. Thus, we 

hold Banfield fails to demonstrate that he was denied the effective assistance of counsel within 

the meaning of Cronic. Thus, his claims of ineffective assistance of counsel fail. 

III. RIGHT TO A SPEEDY TRIAL

Banfield argues that the trial court violated his right to a speedy trial because of the 

23-month delay to his trial. The State agrees that the delay in Banfield’s trial was lengthy but 

denies that his rights were violated. We agree with the State that the delay was lengthy but 

disagree with Banfield that the trial court violated his speedy trial right.

A. Legal Principles

The analysis for constitutional speedy trial rights under article I, section 22 is 

substantially the same as the analysis under the Sixth Amendment. State v. Ollivier, 178 Wn.2d 
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813, 826, 312 P.3d 1 (2013). We review de novo whether a defendant’s constitutional right to a 

speedy trial has been violated. Id.

The courts and prosecutors have “the primary burden” to ensure that cases are brought to 

trial. Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Defendants 

have no duty to bring themselves to trial. Id. at 527. 

We use the Barker balancing analysis to determine whether a defendant’s constitutional 

right to a speedy trial was violated. Ollivier, 178 Wn.2d at 827. Under Barker, we consider

nonexclusive factors, including the ‘[l]ength of delay, the reason for the delay, the defendant’s 

assertion of his right, and prejudice to the defendant.’” Id. (alteration in original) (quoting 

Barker, 407 U.S. at 530). No one factor is sufficient or necessary to find a violation, but they 

assist in determining whether a defendant’s right to a speedy trial has been violated. Id. That 

said, the focal point of the Barker analysis is the reason for the delay. Id. at 831. 

The Barker balancing analysis is fact-specific and depends on the circumstances of the 

case. Id. at 827. When weighing the Barker factors, we must assess the conduct of both the 

State and the defendant. Id.

B. Barker Balancing Analysis

1. Length of Delay

Analysis of the length of delay involves a double inquiry. Id. To trigger the Barker

analysis, the defendant must make a threshold showing that the window between when charges 

were filed and when trial began surpassed the ordinary interval for prosecution, crossing into 

presumptively prejudicial delay. Id. We then consider the degree to which the delay exceeded 
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the bare minimum needed to trigger the Barker analysis. Id. at 828. Put differently, the trigger 

for the Barker analysis and the first factor in that analysis is the length of the delay. Id.

In Ollivier, our Supreme Court noted that trial courts have generally found that delay is 

presumptively prejudicial when it approaches one year. Id. In that case, the State conceded that a 

23-month delay was sufficient to trigger the Barker analysis. Id.

Banfield argues that this factor weighs in his favor because “the facts of the case were 

very straightforward and did not involve complex pretrial discovery.” Br. of Appellant at 45. 

The State appears to agree that Banfield has made a threshold showing that the 23-month delay 

in his case was presumptively prejudicial and is sufficient to trigger the Barker analysis. 

We agree with the State that the delay in Banfield’s trial was lengthy. Here, the delay 

surpassed the ordinary interval for prosecution, even for an individual that was out of custody, 

and crossed into presumptive prejudicial delay. Accordingly, we conclude that the length of the 

delay weighs in favor of Banfield. 

2. Reason for Delay 

The second Barker factor is the reason for the delay. Id. at 827. This factor is the focal 

point of the Barker analysis. Id. at 831. The State argues that this factor should weigh in its 

favor because it is unreasonable to hold the State responsible for unforeseen acts of nature, such 

as the COVID-19 pandemic. Other than the pandemic, the State claims that Banfield’s own 

actions were mostly responsible for the 23-month delay. We conclude that the reason for delay 

factor weighs against Banfield.

In general, the second Barker factor focuses on “whether the government or the criminal 

defendant is more to blame” for the delay. Doggett v. United States, 505 U.S. 647, 651, 112 S.
No. 58510-3-II

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Ct. 2686, 120 L. Ed. 2d 520 (1992). We “look[] to each party’s responsibility for the delay, and 

different weights are assigned to delay, primarily related to blameworthiness and the impact of 

the delay on defendant’s right to a fair trial.” Ollivier, 178 Wn.2d at 831.

The defendant is responsible for delay caused by defense counsel and this includes 

resulting delays from seeking continuances. Id. at 832. We weigh the State’s deliberate delays 

heavily against it. Id. We weigh delay that is caused by the State’s negligence or overcrowded 

courts against the State but to a lesser extent. Id.

Here, the State requested two continuances because of the unavailability of material 

witnesses, and the court granted them after finding good cause. Additionally, the court found 

good cause to continue the trial by a week because it did not have an available courtroom to hear 

Banfield’s case. There is no evidence that the State deliberately delayed the trial to frustrate the 

defense. The State is responsible for the delays resulting from the continuances and court 

congestion and we weigh these to a lesser extent than we would any deliberate delays. 

The Cowlitz County Superior Court and Washington Supreme Court issued multiple 

orders, which suspended trials for periods of time and necessitated COVID-19 related 

continuances. While this created a delay for both parties, neither party caused the COVID-19

pandemic nor the resulting suspension of trials. Therefore, we do not assign responsibility to 

either party for the delays resulting from those continuances. 

Banfield’s counsel requested two continuances, one due to his withdrawal based on a 

conflict of interest and one presumably due to his approved leave. The court determined there 

was good cause for both continuances. Next, Banfield failed to appear for trial in December 
No. 58510-3-II

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2021 due to health issues. Additionally, Banfield failed to appear for a readiness hearing. 

Banfield is responsible for those resulting delays. 

Although the State shares responsibility for the 23-month delay, Banfield’s conduct was 

the more significant cause of the delay based on the number of delays attributed to Banfield and 

his counsel. Accordingly, we conclude that the reason for delay factor weighs more heavily 

against Banfield.

3. Assertion of Right to Speedy Trial

The third Barker factor is whether the defendant asserted their right to a speedy trial. Id.

at 827. We find this factor weighs in Banfield’s favor. 

When analyzing the third Barker factor, we consider “whether and to what extent a 

defendant demands a speedy trial.” State v. Iniguez, 167 Wn.2d 273, 294, 217 P.3d 768 (2009). 

We objectively examine a defendant’s assertion of their speedy trial right in light of their other 

conduct. Id. at 284. We consider the frequency and force of a defendant’s objections to further 

delay. Id. at 295.

Here, Banfield opposed several continuances. When he objected, he clearly asserted his 

speedy trial right. Thus, we conclude that the assertion of the right to a speedy trial factor 

weighs in favor of Banfield. 

4. Prejudice from Delay

The fourth Barker factor is whether the delay prejudiced the defendant. Ollivier, 178 

Wn.2d at 827. Banfield appears to argue that he may rely on a presumption of prejudice. We 

disagree.
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Courts do not always presume prejudice. Id. at 840. Indeed, they generally have 

presumed prejudice where there is an extreme delay that has lasted at least five years. See id. at 

842-43. “A defendant ordinarily must establish actual prejudice before a violation of the 

constitutional right to a speedy trial will be recognized.” Id. at 840. 

Courts consider an impairment of the defense to be the most serious form of prejudice, 

and we presume this prejudice intensifies over time. State v. Nov, 14 Wn. App. 2d 114, 134, 469 

P.3d 352 (2020). A defendant need not make particularized showings of prejudice when a delay 

is sufficient in length such that a presumption of prejudice arises. Id. at 134-35. The State may 

rebut this presumption by showing that the delay did not impair the defense. Id. at 135. 

Here, Banfield, who was out of custody, does not advance any particularized prejudice, 

such as an impairment to his ability to present a defense. While prejudice presumably intensifies 

over time, under these circumstances, the 23-month delay is not long enough to constitute 

extreme delay warranting the presumption of prejudice. Thus, we conclude that the prejudice 

from delay factor weighs heavily against Banfield.

5. Balancing the Factors

We must balance the Barker factors. Ollivier, 178 Wn.2d at 827. As discussed above, 

the reason for delay and prejudice from delay factors weigh heavily in favor of the State. The

length of delay and assertion of the right to a speedy trial factors weigh in favor of Banfield. 

Notably, the focus of the Barker analysis is the reason for the delay. Here, beyond the 

COVID-19 pandemic, the 23-month delay was more so due to Banfield’s conduct than the 

State’s conduct. Furthermore, the record does not show that the defense was impaired by the 
No. 58510-3-II

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delay, rebutting any presumption of prejudice to Banfield. These factors outweigh the length of 

delay and assertion of the right to a speedy trial. 

Considering all four Barker factors, we conclude that the balancing analysis weighs in 

favor of the State. Accordingly, we hold that the trial court did not violate Banfield’s right to a 

speedy trial under the United States and Washington Constitutions.

IV. LEGAL FINANCIAL OBLIGATIONS

Banfield argues his $500 VPA and $100 DVA fees should be stricken. We remand to the 

trial court to consider whether to impose the VPA fee and to strike the DVA fee.

Amended RCW 7.68.035(4) requires that no VPA fee be imposed if the trial court finds 

at the time of sentencing that the defendant is indigent as defined in RCW 10.01.160(3). 

Amended RCW 7.68.035(4) applies to Banfield because this case is on direct appeal. See State 

v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). At sentencing, the trial court stated that it 

would “impose the mandatory minimum financial obligations, [and] waive anything that[] [was] 

not mandatory.” RP at 388. It did not make an indigency determination. Because the trial court 

has not made the specific indigency finding that is necessary under RCW 10.01.160(3) and this 

case is on direct appeal, we remand to the trial court to evaluate indigency under the statutory 

definition and consider whether to impose the VPA fee.

RCW 10.99.080(1) provides in part that a trial court “may impose a penalty of one 

hundred dollars, plus an additional fifteen dollars on any adult offender convicted of a crime 

involving domestic violence” (emphasis added). At sentencing, the trial court indicated that it 

was going to impose only mandatory legal financial obligations. Thus, we remand to the trial 

court to strike the DVA fee. 
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CONCLUSION

We hold (1) the trial court did not err in denying Banfield’s motion for mistrial based on 

Curtis’s testimony, (2) Banfield fails to demonstrate that he was denied the effective assistance 

of counsel, and (3) the trial court did not violate Banfield’s right to a speedy trial under the 

United States and Washington Constitutions.

Accordingly, we affirm Banfield’s conviction, but remand to the trial court to consider 

whether to impose the VPA fee under RCW 10.01.160(3) and to strike the DVA fee. 

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.

Che, J.

We concur:

Veljacic, A.C.J.

Price, J.