State Of Washington, V. Brandon L. Holmes ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84127-1-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
BRANDON LEE HOLMES,
Appellant.
HAZELRIGG, A.C.J. — Brandon Holmes appeals from a conviction for one
count of rape of a child in the second degree. He raises numerous constitutional
claims on appeal, arguing that he was deprived of the right to counsel, the right to
a fair trial, and the right to be present and testify. While Holmes’ various arguments
are largely without merit and we affirm his conviction, the sentencing court did
miscalculate his offender score based on an out-of-state conviction, and thus,
remand is required for recalculation and resentencing.
FACTS
On September 28, 2018, the State charged Brandon Holmes with one count
of rape of a child in the third degree. Before trial, the State amended the
information to one count of rape of a child in the second degree and alleged that,
between June 1 and August 29, 2018, Holmes had sexual intercourse with J who
was 13 years old at the time.
No. 84127-1-I/2
Holmes’ first appointed attorney, Karim Merchant, withdrew due to conflict.
Thereafter, Holmes moved to discharge his second appointed attorney, Harry
Steinmetz. While the trial court noted that it heard nothing from Holmes that would
require a new attorney, it nonetheless exercised its discretion to grant the motion
and stated, “[W]e’ll give you a chance with someone else, and hopefully that’ll be
a better fit for you.” On April 23, 2019, the King County Department of Public
Defense assigned Abigail Cromwell to Holmes’ case. Approximately five months
later, Holmes moved to discharge Cromwell. The trial court noted that there was
“room for additional or improved communication” between Holmes and Cromwell,
but found there was not such a breakdown in communication to necessitate
appointment of new counsel and denied the motion to discharge.
The next day, Cromwell moved to withdraw as counsel “due to professional
considerations preventing [her] continued representation.” At the hearing on the
motion, Cromwell asserted there was “a total breakdown in communication” and
explained that many of her conversations with Holmes ended either in Holmes
hanging up or walking away. Holmes responded by asserting that Cromwell was
lying: “I have never hung up the phone, never walked away, ever. That is a flat-
out lie.” The court denied counsel’s motion to withdraw but said that it would
consider further information submitted on the issue. Cromwell filed a supplemental
motion and the trial court authorized her withdrawal on October 15, 2019.
Jerry Stimmel then became Holmes’ fourth court-appointed attorney. Due
to the COVID-19 1 pandemic, the trial was delayed several times and ultimately set
1 2019 novel coronavirus infectious disease.
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for March 22, 2022. On the morning that trial was scheduled to begin, Holmes
moved to discharge Stimmel and sought the appointment of yet another attorney.
Holmes addressed the court and alleged that Stimmel was not prepared and
expressed concern about “the way [they] communicate” with each other. The court
denied the motion. In doing so, the court emphasized that they were “here on the
day of the trial; today’s the trial date.” Further, the court reasoned that Stimmel
had been representing Holmes since November of 2019, noted the case was
already four years old, referenced the significant delay that would result from
assigning new counsel, and stated that “given the record I’ve just outlined, it
appears to the [c]ourt that there [are] strategic reasons to not move this case
forward.”
On April 14, 2022, the jury trial began and the parties provided opening
statements. Testimony established that Peggy Toves and Holmes began dating
in 2014. In 2016, they moved from California to Washington with Toves’ two
daughters, J (born in August 2004) and H. They lived with Holmes’ parents until
2018 when they moved into a small motel room in Federal Way. While the family
was staying in Federal Way, Holmes and Toves had a child together, A.
J recalled that in 2018 she was comfortable talking with Holmes about
various things and felt that he listened to her. J testified that Holmes would tell her
and H to call him “dad” and he would give them advice; J confirmed that she trusted
Holmes. By May of 2018, however, J stated that Holmes told her that he and
Toves were fighting “because he wanted to have a threesome and [her] mother
didn’t.” She also explained that Holmes talked about her vagina and told her “the
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reason [her] mom was so angry was because she didn’t masturbate.” J stated that
this made her feel “uncomfortable,” “weirded out, [and] confused.” When J was
13, the summer before she started high school, she took a bath after volleyball
tryouts and Holmes walked into the bathroom, “peeked his head” around the
curtain, and looked at her. According to J, she “was naked and [Holmes] was
looking at [her] . . . while [she] was in the bathtub.” When Holmes walked out of
the bathroom, J recalled hearing Toves and Holmes “laughing about it.”
J also testified that, when she was 13, Holmes took her to a smoke shop in
Tacoma to get marijuana. During the drive, Holmes began talking “about sex.” J
stated that she started to cry when Holmes told her “that he wanted [her] to have
an orgasm and that he wanted to be the one to give [her] that.” Holmes then tried
to show J a pornographic video and “he got upset” because J did not want to watch
it. When the two returned to the motel, J testified, Holmes gave her marijuana and
she “threw up” after she smoked it. J stated that Holmes then pulled up the
pornographic video on his phone, handed the phone to her, and told her to “go into
the bathroom and not to argue and just watch it.” J felt scared and went into the
bathroom with the phone and just sat on the floor and closed her eyes. According
to J, Holmes then walked into the bathroom, turned off the lights, and “grabbed
[her] hand and guided [her] hand to [her] vagina and started moving [her] hand in
circular motions.” Holmes also put his “finger inside of [J’s] vagina.” J told Holmes
to “stop” and he turned the light on and “asked if [J] was okay.” After Holmes left
the bathroom, J went to the bed and Holmes then asked her to come outside with
him so they could talk. Holmes asked J whether she was going to tell her mom
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and she answered, “Yes.” In response, J testified, “[Holmes] asked me to let him
know when I was gonna tell my mom so that way he can pack his bags and say
goodbye to my brother so that we—because he said that we weren’t gonna see
him ever again.”
J did not immediately disclose the incident to anyone, but shortly afterward,
she visited Holmes’ sister, Catrina Holmes, 2 and reluctantly told Catrina what had
occurred in the bathroom. Catrina and Holmes’ other sister, Valerie, told Toves
what J had disclosed and took the children along with Toves to Holmes’ parent’s
house, and later to Catrina’s house. When Toves took the children to return to
Holmes, Valerie called Child Protective Services and Holmes was ultimately
arrested. Holmes testified in his own defense and denied ever touching J as she
had described and further stated that he had never taken her to get marijuana.
At the conclusion of trial, the jury found Holmes guilty as charged. The trial
court imposed an indeterminate sentence with a minimum of 108 months’
confinement up to a maximum term of life in prison. The court also imposed the
$500 victim penalty assessment (VPA) and $100 DNA collection fee, but noted
that all “non-mandatory fines or fees waived.”
Holmes timely appealed.
2 Because they share the same last name as Holmes, we refer to both of his sisters by
their first names for clarity. No disrespect is intended.
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ANALYSIS
I. Claim of Complete Denial of Counsel
Holmes assigns error to the trial court’s denial of his motion to discharge
Stimmel as his attorney, which, he avers, violated his constitutional right to
“conflict-free counsel.”
As a preliminary matter, Holmes’ briefing reflects fundamental
misunderstandings of the law and fails to separate clearly distinct legal concepts
for proper consideration. First, it is well established that “conflict-free counsel”
refers to “counsel free from conflicts of interest.” State v. Reeder, 181 Wn. App.
897, 908, 330 P.3d 786 (2014), aff’d, 184 Wn.2d 805, 365 P.3d 1243 (2015); State
v. Davis, 141 Wn.2d 798, 860, 10 P.3d 977 (2000). While Holmes frames this
issue in both the assignment of error and his argument in briefing as a deprivation
of his “right to conflict-free counsel,” he makes no attempt to show that his attorney
had an actual conflict of interest. 3 Second, “conflicts of interest” and “irreconcilable
conflicts” are separate concepts that require different analyses. United States v.
Moore, 159 F.3d 1154, 1157-58 (9th Cir. 1998); see also In re Pers. Restraint of
Stenson, 142 Wn.2d 710, 721-22, 16 P.3d 1 (2001) (Stenson II). Confoundingly,
Holmes cites to Stenson II in his opening brief for a rule statement in which he
conjoins those distinct categories into one that he then refers to as an
“irreconcilable conflict of interest.”4 Third, a “complete breakdown in
3 “To establish that an actual conflict of interest deprived him of effective assistance of
counsel, [the defendant] must show both that [their] attorney had a conflict of interest and that the
conflict adversely affected counsel’s performance.” Reeder, 181 Wn. App. at 909.
4 At oral argument before this court, Holmes’ counsel was asked where the phrase
“irreconcilable conflict of interest” came from and what type of conflict he was alleging, to which
defense counsel responded, “the key basis of the request to discharge counsel was the breakdown
in communications.” Wash. Ct. of Appeals oral argument, State v. Holmes, No. 84127-1-I (Mar. 7,
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communication” and an “irreconcilable conflict” are also separate grounds to move
for substitution of counsel. See State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d
1239 (1997) (Stenson I). Again, Holmes blends these together and asserts that
the “breakdown in communications” with his counsel “constituted an irreconcilable
conflict.” Then, he avers reversal is required due to the “complete breakdown in
communication.” Regardless of the specific basis, Holmes ultimately asserts that
he was completely denied his right to the assistance of counsel under the Sixth
Amendment to the United States Constitution.
Whether to grant a defendant’s motion for new court-appointed counsel is
a decision within the discretion of the trial court. Stenson I, 132 Wn.2d at 733. On
a motion to substitute counsel, courts are to consider “(1) the reasons given for the
dissatisfaction, (2) the court’s own evaluation of counsel, and (3) the effect of any
substitution upon the scheduled proceedings.” Id. at 734. This court reviews the
denial of a defendant’s motion for new appointed counsel under an abuse of
discretion standard. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004).
“Discretion is abused if the trial court’s decision is manifestly unreasonable, or is
exercised on untenable grounds, or for untenable reasons.” State v. Vermillion,
112 Wn. App. 844, 855, 51 P.3d 188 (2002).
While the Sixth Amendment guarantees all accused persons the right to
assistance of counsel, it provides neither an absolute right to choose a particular
2024), at 2 min., 7 sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-2024031201/?eventID=2024031201.
On rebuttal, in an apparent attempt to provide an answer to the question posed, defense
counsel stated that United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001), “equat[ed] a
communications breakdown with an irreconcilable conflict.” Wash. Ct. of Appeals oral argument,
supra, at 19 min., 2 sec. The question regarding “irreconcilable conflict of interest” remained
unanswered; Nguyen does not mention “irreconcilable conflicts” nor “conflicts of interest.”
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No. 84127-1-I/8
court-appointed counsel nor any right to have a “meaningful relationship” with
appointed counsel. Wheat v. United States, 486 U.S. 153, 158, 108 S. Ct. 1692,
100 L. Ed. 2d 140 (1988); Stenson I, 132 Wn.2d at 733; Morris v. Slappy, 461 U.S.
1, 14, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). “[T]he right to effective assistance
of counsel is recognized not for its own sake, but because of the effect it has on
the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S.
648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Thus, “the Sixth Amendment
is not implicated absent an effect of the challenged conduct on the reliability of the
trial process.” State v. McCabe, 25 Wn. App. 2d 456, 461, 523 P.3d 271, review
denied, 1 Wn.3d 1014 (2023). “There are, however, circumstances that are so
likely to prejudice the accused that the cost of litigating their effect in a particular
case is unjustified.” Cronic, 466 U.S. at 658. One example is “the complete denial
of counsel.” Id. at 659.
In order to obtain a different appointed attorney, a defendant “must show
good cause to warrant substitution of counsel, such as a conflict of interest, an
irreconcilable conflict, or a complete breakdown in communication between the
attorney and the defendant.” State v. Schaller, 143 Wn. App. 258, 267-68, 177
P.3d 1139 (2007). Holmes contends that he and Stimmel had an “irreconcilable
conflict,” which “occurs when the breakdown of the relationship results in the
complete denial of counsel.” Id. at 268. “A defendant need not show prejudice
when the breakdown of a relationship between attorney and defendant from
irreconcilable differences results in the complete denial of counsel.” Stenson II,
142 Wn.2d at 722. To determine whether an irreconcilable conflict exists, this court
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considers “(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the
timeliness of the motion.” Id. at 724.
Looking at the conflict, “this court considers the extent and nature of the
breakdown in the relationship and its effect on the representation actually
presented.” Schaller, 143 Wn. App. at 270. Prejudice is presumed when
representation is inadequate. Stenson II, 142 Wn.2d at 724.
On the day trial was scheduled to begin, Stimmel told the judge that Holmes
“desire[d] to discharge [him].” Stimmel noted that it “ha[d] been a very difficult
month” and their “communication ha[d] really broken down.” He concluded,
“[Holmes] would like to fire me, and I would like to be fired or—or withdraw under
the circumstances.” The trial court then turned to Holmes and the following
exchange occurred:
[HOLMES]: Uhm, my motion is I guess an agreement to
discharge—or in agreements with my lawyer, to discharge my
lawyer. Uhm, we have tried to look for different ways to work with one
another. And do—I don’t know the exact penal codes or the-the exact
statutes, but I do not believe I have good counsel in the form of, for
one, the way we communicate, the actual work or things that have
been done or addressed. There have been a number of things, even
when it comes to the—to the choice I can make between a trial or
taking a deal. On one side, the deal, we have not properly sat down
and went through every single thing that is involved in the deal. I’ve
had questions from the time he’s been my lawyer, questions that
have not been addressed, questions that have—have left me, uh,
between a rock and a hard place between going to trial with an
individual who hasn’t—doesn’t even know certain facts of my case.
He—we’ve talked about certain facts of my case. He doesn’t know
certain defense strategies, certain communications. Uh, I don’t
believe I have somebody who’s unbiased. I believe I have somebody
who, if I go to trial, it’s been said in so many words that it’s not going
to be too much assistance or help for even proper protocol and
procedures, strategies, or anything of the sort. When it comes up
to—since 2020, he’s been [] my lawyer, and I feel like I’m placed
between the—the urgency to go to trial or make a decision. But, my
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No. 84127-1-I/10
counsel has expressed just now for the [c]ourt, previously for the
courts, and in the past documentations and records from me and him
before that he is not the one that’s ready. He is not prepared. He is
not—we are at a—at a strong standstill, sir, and I feel like I will be—
I will set myself up to fail if I go to trial or take a deal with the counsel
that I have.
THE COURT: Thank you, Mr. Holmes. The record before the
[c]ourt is that you were arraigned in October of 2018. You had
counsel. That counsel and you had difficulties, and there w[ere]
discussions about changing counsel. Initially that was denied and—
and then eventually granted. You’ve had Mr. Stimmel here since
November of 2019. And we are here on the day of the trial; today’s
the trial date.
The [c]ourt is not inclined to discharge [c]ounsel. You have the
right to have competent counsel. Mr. Stimmel is competent. He will
act ethically and try the case appropriately. I have complete
confidence in that. If there’s something that happens during trial, we’ll
address it at that time.
In terms of what the [c]ourt has been saying for the last few
months, this case has to go to trial given the age of the case. And
so, I expect it to go to trial. If you are firing Mr. Stimmel to represent
yourself, that’s one thing. We’ll have a discussion about that. If you’re
asking for a new counsel at this late date for an attorney to get up to
speed for a case that is four years old, that is unreasonable. It would
mean [] a delay of the case for a lengthy period of time. Again, the
[c]ourt has to make decisions based on the need of [c]ounsel to be
able to communicate with their client, the need of [c]ounsel to be
prepared to go forward on the case, and any other concerns the
[c]ourt is worried about.
In this case, given the record I’ve just outlined, it appears to
the [c]ourt that there is strategic reasons to not move this case
forward. And so, the [c]ourt is going to deny the motion to discharge
[c]ounsel.
The case proceeded to trial with Stimmel representing Holmes and no further
issues or complaints were raised by either of them.
In Stenson II, the court rejected a denial of counsel claim based on an
alleged irreconcilable conflict between Stenson and his attorney that continued
throughout trial. 142 Wn.2d at 732. Stenson moved to substitute his counsel after
nearly three weeks of jury selection and argued that one of his attorneys “spent
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virtually no time preparing for the jury trial.” Id. 726-27. He insisted that his
“attorneys refused to investigate things he and his family thought were important
to the case.” Id. at 727. According to Stenson, his counsel “visited him in prison
fewer than 10 times in 10 months,” he “could never get through to [counsel] on the
phone” and his “[attorney’s] office stopped receiving his calls.” Id. After the court
denied Stenson’s motion for new counsel, his attorney moved to withdraw 10 days
into trial. Id. at 728-29. Defense counsel explained that he “felt he did not have
an attorney-client relationship with Stenson,” he was “extremely frustrated with
[Stenson] to the point of really not wanting to go on with this case,” and stated,
“Quite frankly, I can’t stand the sight of him.” Id. at 729. Stenson “continued to
complain about a lack of communication and was upset that counsel had visited
him only twice during the three-week duration of trial.” Id. On review, our Supreme
Court explained that “it does not appear that the extent of the conflict was very
great or the breakdown in communication very severe.” Id. at 731. Not only did
the court determine there was “no reason to believe that an irreconcilable conflict
between Stenson and his counsel existed,” it also plainly held that the
circumstances “d[id] not come close to constituting denial of counsel.” Id. at 732
(emphasis added).
Here, unlike in Stenson II, the conflict between Holmes and Stimmel did not
continue into trial; the record shows no further requests from Holmes or Stimmel
to discharge or withdraw, respectively. Moreover, the extent of the conflict in
Stenson II resulted in counsel stating that he did not believe he had an attorney-
client relationship with Stenson and also that he could not stand the sight of him.
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No. 84127-1-I/12
Here, however, Holmes merely noted, “I do not believe I have good counsel in the
form of, for one the way we communicate.” The difference as to the level of these
respective disputes is plain on its face. While Holmes insists that Stimmel was
“not prepared,” this contention is belied by the record and the fact that Holmes
never raised another concern based on his counsel’s performance. Nothing in the
record before us reaches the level of the dispute in Stenson II.
It is noteworthy that Holmes does not contend Stimmel was ineffective as
counsel. Further, while he alleges that Stimmel “had not answered his questions,
was not prepared, did not know the facts of the case, and did not know about
defense strategies” before trial began, Holmes does not point to anything that
Stimmel did or failed to do during the course of trial that could have constituted
inadequate representation. This omission makes sense as the record shows that
Stimmel provided Holmes’ with adequate representation during trial. Stimmel
engaged in voir dire and questioned potential jurors, filed motions in limine to
exclude certain testimony of various witnesses and other evidence, cross-
examined officers in the CrR 3.5 hearing and argued for suppression of Holmes’
statements, presented the defense theory of the case during opening statement
and closing argument, conducted cross-examinations of numerous State
witnesses, and made objections throughout trial. While it is clear that Holmes was
concerned about the way he and Stimmel communicated, as well as Stimmel’s
general preparation for trial and knowledge of “defense strategies,” the record does
not show a serious conflict between the two nor any impact on the representation
Holmes actually received at trial. See State v. Svikel, No. 83649-8-I, slip op. at 7
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(Wash. Ct. App. Mar. 27, 2023) (unpublished) (“It necessarily follows that when
counsel’s representation results in an adequate defense having been presented,
the defendant has not been completely deprived of his right to counsel.”),
https://www.courts.wa.gov/opinions/pdf/836498.pdf. 5
As to the adequacy of the trial court’s inquiry in response to Holmes’ motion
to discharge counsel, we have held that the “trial court conducts adequate inquiry
by allowing the defendant and counsel to express their concerns fully.” Schaller,
143 Wn. App. at 271. Here, the trial court allowed Holmes and Stimmel to express
their concerns completely. While Holmes cites to Stenson II, in which the court
held an in-camera hearing, the record before us does not reflect the same level of
conflict and/or necessity for such a hearing. We have made clear that when the
defendant asserts his reasons for dissatisfaction on the record, formal inquiry is
not always necessary. Schaller, 143 Wn. App. at 272. Here, Holmes was provided
ample opportunity to share his concerns and did so. The trial court also assured
Holmes that if “there’s something that happens during trial, we’ll address it at that
time.” As the record shows, Holmes did not feel the need to address this matter
again.
Turning next to the timeliness of Holmes’ motion, he moved to discharge
Stimmel on the day trial was set to begin. According to Holmes, the “motion was
timely under the circumstances,” and “[a]lthough the motion was made close to
trial, it was based on [] Stimmel’s failure to work on [his] case.” Even at oral
5 This opinion is unpublished and cited pursuant to GR 14.1(c) as necessary for a well-
reasoned opinion. Because of the factual similarities with the instant case, we expressly adopt the
sound reasoning articulated in Svikel.
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No. 84127-1-I/14
argument before this court, defense counsel claimed that the timing of the motion
“doesn’t weigh against [Holmes] because the delay was entirely attributable to []
Stimmel.” 6 Such a characterization paints Holmes as a client without autonomy to
express concerns regarding his attorney-client relationship, which is blatantly
contradicted by the record, especially the fact that he raised similar issues with
numerous other attorneys who had represented him in this case before trial. As
our Supreme Court held in Stenson II, “‘where the request for change of counsel
comes during the trial, or on the eve of trial, the [c]ourt may, in the exercise of its
sound discretion, refuse to delay the trial to obtain new counsel and therefore may
reject the request.’” 142 Wn.2d at 732 (quoting United States v. Williams, 594 F.2d
1258, 1260-61 (9th Cir. 1979)).
As none of the factors set out in Stenson II support a conclusion that there
was an irreconcilable conflict between Holmes and Stimmel, we reject this claim.
Just like those in Stenson II, these facts do not come close to constituting a
complete denial of counsel under the Sixth Amendment. Because the denial of
Holmes’ last-minute motion for new counsel was based on tenable grounds, the
trial court did not abuse its discretion.
II. Trial Irregularity Concerning Potential COVID-19 Exposure
Holmes contends he was deprived of his right to a fair trial because the jury
discovered that Toves, who lived with him, tested positive for COVID-19 leading
jurors to inquire about whether Holmes had exposed them to the disease during
trial.
6 Wash. Ct. of Appeals oral argument, supra, at 21 min., 30 sec.
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No. 84127-1-I/15
Trial irregularities are those that occur during a criminal trial and “implicate
the defendant’s due process rights to a fair trial.” State v. Davenport, 100 Wn.2d
757, 761 n.1, 675 P.2d 1213 (1984). In ascertaining whether the defendant
received a fair trial, we “look to the trial irregularity and determine whether it may
have influenced the jury.” Id. An irregularity necessitates a new trial when it is so
prejudicial 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)).
The Sunday night before Toves was scheduled to testify, she informed the
prosecutor that she had tested positive for COVID-19. Defense counsel was made
aware of this on the same day as the prosecutor. On Monday, the State moved to
allow Toves to testify remotely on the following day and, with no objection from
Holmes, the court granted the motion based on a finding of extraordinary
circumstances.
Prior to her testimony, the trial court told the jury: “Toves is ill and cannot
safely come to court. And so, I’ve made a ruling allowing her to testify via Zoom[7]
audio and video link. So, please consider her testimony the same way you would
consider the testimony of any other witness.” During direct examination, the
prosecutor had the following exchange with Toves regarding her health and
housing status:
[STATE:] And Ms. Toves, you were initially supposed to come in in
person yesterday; is that right?
[TOVES:] That is right.
7 “Zoom” is an internet-based videoconferencing platform.
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[STATE:] But, you’re not feeling so good, and under the
circumstances we’re—we’re having you call in; is that right?
[TOVES:] That is correct.
[STATE:] Okay. Thank you very much for doing that. And Ms. Toves
how—how old are you?
[TOVES:] I’m 37.
[STATE:] And where do you currently live?
[TOVES:] In Auburn.
[STATE:] And who do you live with?
[TOVES:] With Brandon.
[STATE:] And who—
[TOVES:] Holmes.
[STATE:] Brandon Holmes? And do you live with anyone else?
[TOVES:] No.
[STATE:] How long have you lived there?
[TOVES:] Say a couple months.
The prosecutor did not elicit any testimony from Toves concerning her
contraction of COVID-19. At the beginning of cross-examination, however,
Holmes immediately directed his questions to Toves’ illness:
[DEFENSE:] Ms. Toves, do you have any objection to our reviewing
to the—the jury what the nature of your illness is?
[TOVES:] No, I don’t have any objection.
[DEFENSE:] You positive about that?
[TOVES:] Yes.
[DEFENSE:] You sure that’s okay?
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No. 84127-1-I/17
[TOVES:] About what—okay.
[DEFENSE:] Just—just to tell the jury what your sickness is?
[TOVES:] My—oh, COVID?
[DEFENSE:] Yes.
[TOVES:] Tested positive for COVID.
Outside the presence of the jury, when the court expressed concern about
not being notified that Holmes lived with Toves and was exposed to COVID-19,
defense counsel apologized and informed the court that Holmes had taken a
COVID-19 test the night before Toves was originally scheduled to testify and “it
was negative for him.” Though defense counsel knew Toves and Holmes lived
together, the prosecutor “wasn’t sure of that until [they] began the testimony.” After
Toves’ testimony concluded and the jury had heard that she had COVID-19 and
lived with Holmes, three jurors asked the bailiff whether Holmes had been tested
for the virus. Before trial the following day, Holmes took a COVID-19 test, which
was negative. To promptly address the jurors’ concerns, the court informed the
jury that Holmes had taken two COVID-19 tests, both with negative results.
Invited Error Doctrine
The invited error doctrine provides that “a party who sets up an error at trial
cannot claim that very action as error on appeal and receive a new trial.” State v.
Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009). The doctrine “‘precludes a
criminal defendant from seeking appellate review of an error they helped create,
even when the alleged error involves constitutional rights.’” State v. Tatum, 23
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No. 84127-1-I/18
Wn. App. 2d 123, 128, 514 P.3d 763, review denied, 200 Wn.2d 1021 (2022)
(quoting State v. Carson, 179 Wn. App. 961, 973, 320 P.3d 185 (2014)). “To be
invited, the error must be the result of an affirmative, knowing, and voluntary act.”
State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014). The doctrine
applies to testimony that is directly elicited by the defense. See State v.
McPherson, 111 Wn. App. 747, 764, 46 P.3d 284 (2002); State v. Vandiver, 21
Wn. App. 269, 273, 584 P.2d 978 (1978).
Here, Holmes knowingly and deliberately elicited Toves’ testimony
concerning her COVID-19 diagnosis shortly after she had testified on direct
examination that she resided with Holmes. Because the alleged error was set up
by Holmes and that information was revealed to the jury only by the defense
through its cross-examination, the invited error doctrine applies and precludes
appellate review of this issue. Mercado, 181 Wn. App. at 630; Vandiver, 21 Wn.
App. at 273.
III. Tailoring Argument During Cross-Examination
Holmes asserts that, during cross-examination, the prosecutor suggested
he tailored his testimony which deprived him of his constitutional rights to both
appear and testify. Because Holmes did not object to the prosecutor’s tailoring
argument during cross-examination and he fails to address the heightened
standard of prejudice applicable on appeal, his claim is waived.
Under the Sixth Amendment and article I, section 22 of our state
constitution, criminal defendants have “the right to ‘appear and defend in person,’
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No. 84127-1-I/19
to testify on [their] own behalf, and to confront witnesses against [them].” State v.
Berube, 171 Wn. App. 103, 114, 286 P.3d 402 (2012).
“A claim of ‘tailoring’ alleges that the defendant conformed their testimony
to the evidence they observed while attending trial.” State v. Carte, 27 Wn. App.
2d 861, 871, 534 P.3d 378 (2023), review denied, 2 Wn.3d 1017 (2024). Tailoring
arguments are either “specific” or “generic.” Id. They are “specific” when “derived
from the defendant’s actual testimony” and “generic” when “based solely on the
defendant’s presence at the proceeding.” Id.Tailoring arguments do not violate a defendant’s Sixth Amendment right to
be present. See Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed.
2d 47 (2000). However, article I, section 22 is analyzed independently of the Sixth
Amendment and while specific tailoring arguments do not violate our state
constitution, generic tailoring arguments do. State v. Martin, 171 Wn.2d 521, 533,
535-36, 252 P.3d 872 (2011); State v. Wallin, 166 Wn. App. 364, 376, 269 P.3d
1072 (2012). While we have extensive case law detailing the constitutionality of,
and test for both specific and generic tailoring, Holmes encounters a procedural
bar to review of this issue.
When the defendant fails to object at trial, the alleged tailoring violation is
waived unless the defendant “demonstrate[s] that the error was flagrant, ill
intentioned, and uncurable.” Carte, 27 Wn. App. 2d at 870. “After error has been
established, the defendant must show prejudice.” Id. at 874. Here, Holmes did
not object during cross-examination and thus he must establish the heightened
standard of prejudice. To do so, he is required to show that “(1) no curative
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No. 84127-1-I/20
instruction could have eliminated the prejudicial effect and (2) there was a
substantial likelihood the misconduct led to prejudice that affected the jury verdict.”
Id. at 874.
Holmes makes no attempt to meet this standard. Instead of following the
applicable standard this court set out in Carte, he requests that we apply the
constitutional harmless error standard and place the burden on the State to show
the absence of prejudice beyond a reasonable doubt. He also asks this court to
“stay this case until Carte is resolved on the merits,” asserting that our Supreme
Court will likely grant review. But the court has since denied review of Carte and
that case is controlling. Thus, even assuming arguendo that the prosecutor’s
tailoring argument here was an improper generic tailoring accusation, Holmes’
claim fails. Carte, 27 Wn. App. 2d at 870. Because Holmes provides no argument
as to the heightened standard of prejudice and he has the burden to make the
showing, this claim is waived. See id.; In re Det. of Rushton, 190 Wn. App. 358,
373, 359 P.3d 935 (2015) (“Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration.”).
IV. Miscalculation of Offender Score
Holmes next avers that remand for resentencing is required as the trial court
erred by including his prior California burglary conviction in his offender score. The
State agrees.
This court reviews the calculation of a defendant’s offender score de novo.
State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014). “The offender score is
the sum of points accrued as a result of prior convictions.” Id.; RCW 9.94A.525.
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No. 84127-1-I/21
“Out-of-state convictions count toward that score if the trial court determines them
to be comparable.” State v. Davis, 3 Wn. App. 2d 763, 771, 418 P.3d 199 (2018).
“The comparability analysis has two steps, one legal and the other factual.” Id. at
772. Under the legal comparability step, “the elements of the out-of-state crime
must be compared to the elements of Washington criminal statutes.” State v.
Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). Pursuant to the factual
comparability inquiry, the court must determine “whether the defendant’s conduct
would have violated the comparable Washington statute.” Olsen, 180 Wn.2d at
473.
Here, the trial court included Holmes’ California burglary conviction in
calculating his offender score based on the State’s argument that it was
comparable to a Washington conviction of burglary in the second degree, a class
B felony. This was erroneous. First, the crime of burglary as defined in California
is not legally comparable to burglary in Washington. Davis, 3 Wn. App. 2d at 772.
Second, as the State concedes in briefing, Holmes’ California burglary conviction
was not factually comparable to a Washington burglary conviction. Because the
trial court miscalculated Holmes’ offender score based on its erroneous inclusion
of the California burglary conviction, we remand for recalculation of his offender
score and resentencing based on a proper score. 8 See State v. Shelley, 3. Wn.
App. 2d 196, 203, 414 P.3d 1153 (2018).
8 Holmes’ last assignment of error is to the imposition of the $500 VPA. As resentencing
is required, we need not reach this issue.
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No. 84127-1-I/22
V. Facial Challenge To Condition of Community Custody
Next, Holmes assigns error to the trial court’s imposition of a condition of
community custody that requires him to consent to random searches by the
Department of Corrections (DOC). The State asserts that this issue is not ripe for
review. We agree with the State.
The judgment and sentence included a special condition requiring Holmes
to “[c]onsent to DOC home visits to monitor compliance with supervision. Home
visits include access for the purposes of visual inspection of all areas of the
residence in which the offender lives or has exclusive/joint control/access.”
A preenforcement challenge to a community custody condition is ripe for
review on the merits “‘if the issues raised are primarily legal, do not require further
factual development, and the challenged action is final.’” State v. Cates, 183
Wn.2d 531, 534, 354 P.3d 832 (2015) (internal quotation marks omitted) (quoting
State v. Sanchez Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). Further,
“we must consider the hardship to the [defendant] if we refused to review their
challenge on direct appeal.” Sanchez Valencia, 169 Wn.2d at 789.
In Cates, our Supreme Court considered whether a facial challenge to a
nearly identical community custody condition was ripe for review:
“You must consent to [DOC] home visits to monitor your compliance
with supervision. Home visits include access for the purposes of
visual inspection of all areas of the residence in which you live or
have exclusive/joint control/access, to also include computers which
you have access to.”
183 Wn.2d at 533. The court noted that “the community custody condition is a
final action and Cates’ challenge raises primarily legal issues.” Id. at 534.
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No. 84127-1-I/23
However, the court rejected Cates’ argument that no further factual development
was necessary. Id. at 535. In doing so, the court explained that the condition did
not allow any and all searches; rather, it limited the State’s authority to conduct
searches to those with the purpose of “‘monitor[ing] Cates’ compliance with
supervision.’” Id. at 535. Because any potential constitutional violation depended
on how the State attempted to enforce the condition and search Cates’ residence
after he was released from confinement, the court determined that further factual
development was necessary. Id.Additionally, the court decided that the risk of hardship to Cates was
insufficient to justify review prior to such factual development. Id. This was so, the
court explained, because “[c]ompliance here does not require Cates to do, or
refrain from doing, anything upon his release until the State requests and conducts
a home visit.” Id. at 536. Thus, the court held Cates’ preenforcement challenge
was not ripe and declined to review the merits. Id.Holmes does not reference Cates in his opening brief. Rather, he relies on
an unpublished opinion from Division Two of this court that “distinguished” Cates
and reached the merits of a constitutional challenge to the same community
custody condition, State v. Franck, No. 51994-1-II (Wash. Ct. App. Feb.
4, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051994-1-
II%20Unpublished%20Opinion.pdf. 9 Franck misconstrues the reasoning of Cates
in one paragraph, contrasts the holding of Cates with Sanchez Valencia and State
v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), and concludes that “the issue is ripe
9 Cited pursuant to GR 14.1 only as it is the primary authority provided by Holmes in support
of this challenge.
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No. 84127-1-I/24
for review.” Franck, slip op. at 19-20. Franck is not controlling, or persuasive on
the issue of ripeness.
While the community custody condition at issue here is final, as it was
imposed on the judgment and sentence, and the claim presented is primarily legal,
as it is a constitutional challenge, we follow Cates and conclude that the issue is
not ripe for review. Because the condition, like the one in Cates, is limited to “visits
to monitor compliance and supervision” and compliance does not require Holmes
“to do, or refrain from doing, anything upon his release until the State requests and
conducts a home visit,” the risk of hardship here does not justify review prior to the
factual development that is as necessary here as it was in Cates.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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