State Of Washington, Res/cross-app. v. Joseph Lochuch Ewalan, App/cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON CI VIC:5 THE STATE OF WASHINGTON, ) cp -4 ) No. 75619-2-1 rZt 73.rn Respondent, ) cs-n -rt ) DIVISION ONE CD 7p. v. ) (firm p ) UNPUBLISHED OPINIGI JOSEPH LOCHUCH EWALAN ) 1TP: ) 5,37:a Appellant. ) FILED: April 30, 2018 c° ) APPELWICK, C.J. — Ewalan was convicted of first degree assault domestic violence while armed with a firearm. He argues that the trial court abused its discretion in denying his motions for new counsel, erred in declining to instruct the jury on a lesser included offense, and abused its discretion in admitting evidence under ER 404(b). He also contends that he received ineffective assistance of counsel. We affirm. FACTS Joseph Ewalan and Maureen Mwaniki married in Kenya in 2010. During that time Ewalan worked as a police officer. They immigrated to the United States in 2011. Once here, Ewalan first worked as a security guard. Ewalan and Mwaniki had two children together. At the time of trial, their children were five and three years old. No. 75619-2-1/2 In 2015, Ewalan and Mwaniki began having problems in their marriage. Mwaniki testified that Ewalan threatened her, and she reported him to police several times. Mwaniki moved out of their home and filed for a dissolution of the marriage. By court order, Ewalan had the children every other weekend and on Thursday afternoons. The court order stated that Ewalan and Mwaniki would meet at McDonald's in Lake Stevens to exchange their children. The order also dictated that Ewalan and Mwaniki were to communicate only by text or e-mail. On the evening of November 12, 2015, Mwaniki went to the usual McDonald's to pick up the children from a Thursday afternoon with Ewalan. Mwaniki testified that Ewalan approached her in the parking lot, yelling at her in Swahili. She testified that Ewalan then pulled out his gun and pointed it at her head. Mwaniki testified that she pushed EwaIan's shoulder and he shot the gun. Mwaniki did not see where the bullet went. Mwaniki then ran with her children into the McDonald's, yelling for help. Inside McDonald's, someone handed Mwaniki a phone to tell a 911 operator what happened. Ewalan was charged with first degree assault domestic violence while armed with a firearm. Ewalan filed a motion for new counsel nearly seven months before trial commenced. About his attorney, Ewalan told the court, "I don't trust her anymore" and "it looks like she is working with the State." The court denied EwaIan's motion. Less than a month after his first motion, Ewalan again moved for new counsel. In his motion, Ewalan told the court that his counsel was "torn 2 No. 75619-2-1/3 between the State and client she is supposed to represent." The trial court denied the motion. The jury found Ewalan guilty. The court imposed a standard range sentence. Ewalan appeals. DISCUSSION Ewalan makes four arguments. First, he argues that the court erred in denying his motions for substitution ...

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