State of Washington v. Gregory Lamont Hughes-Simmons, Jr.

                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             June 10, 2025




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

 STATE OF WASHINGTON,                                                 No. 58643-6-II

                                Respondent,

         v.

 GREGORY LAMONT HUGHES-SIMMONS,                                 UNPUBLISHED OPINION
 JR.,

                                Appellant.

       CRUSER, C.J. — Gregory Hughes-Simmons Jr. appeals his convictions for unlawful

possession of a controlled substance with intent to deliver fentanyl while armed with a firearm,

unlawful possession of a controlled substance with intent to deliver heroin, and unlawful

possession of a firearm in the first degree. He raises several issues on appeal. First, he argues there

was insufficient evidence to support the firearm sentencing enhancements. Second, he argues he

received ineffective assistance of counsel because his counsel had a conflict of interest, would not

call a critical defense witness, and could not present a complete defense. He also alleges he

received ineffective assistance of counsel because his counsel failed to object to evidence

regarding uncharged drug possession and failed to pursue an Old Chief1 stipulation. Third, he




1 Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
No. 58643-6-II


argues the court erred in not allowing counsel to withdraw on the basis of the alleged conflict of

interest. Finally, he argues the trial court erred in refusing to consider his motion for a new trial.

          We conclude that sufficient evidence supported the firearm sentencing enhancements,

Hughes-Simmons does not show he received ineffective assistance of counsel, and the trial court

did not err in denying counsel’s motion to withdraw. We decline to consider Hughes-Simmons’

claim that the trial court erred in declining to consider his motion for a new trial. Accordingly, we

affirm.

                                               FACTS

                                          I. BACKGROUND2

          In September 2021, Hughes-Simmons’ supervising community corrections officer,

Howard Chea, received evidence from a Lakewood Police Department detective that Hughes-

Simmons had violated a condition of his community custody while under a Drug Offender

Sentencing Alternative. Chea called Hughes-Simmons and told him to report to the Department of

Correction’s office. When Hughes-Simmons came in, Chea arrested him and placed him in the

back of a Department of Corrections vehicle. Chea read Hughes-Simmons Miranda3 warnings

while he was in the backseat of the vehicle.

          Chea assembled a team and drove to the house of Hughes-Simmons’ girlfriend, Naquaisha

Mays, to conduct a search. Officers searched the residence, and in a room containing men’s

clothing, cologne, shoes, and mail that was addressed to Hughes-Simmons, officers discovered a

black 10”x12” safe. Officer Bryan Piek found a second safe in that room that was white. After


2 This factual background is taken predominantly from testimony presented at trial.


3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).




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No. 58643-6-II


discovering the key to the white safe, officers opened it and found unknown yellow pills, a scale,

and baggies. Piek informed Mays that they needed to open the black safe, and Mays then told him

there was a firearm inside and that the contents of the safe belonged to her. Mays had the key to

the black safe and opened it. Officer Ryan Hamilton stated that inside the safe was a .40 caliber

firearm with a fully loaded magazine and a round in the chamber, five weapon magazines, fentanyl,

heroin, pills believed to be ecstasy, Ziploc baggies, and scales.

        Hamilton stated that once they began to place Mays in custody, Hughes-Simmons yelled

from the car that “everything was his and that [Mays] had nothing to do with it. 2 Rep. of Proc.

(RP) at 224. Mays then admitted that she loved Hughes-Simmons and was trying to protect him

when she claimed possession of all the items in the safe. Hamilton read Hughes-Simmons Miranda

rights again. Hamilton said that Hughes-Simmons then told him that the drugs and the gun were

his. Hughes-Simmons told him he was selling pills in 100-quantity packs for $600. Hamilton also

testified that

        [t]here was approximately a half ounce [of heroin]. And there was a smaller
        quantity that looked like it was prepackaged for sale. [Hughes-Simmons] said that
        that was his but that it had been found in a vehicle that he was using. He told me
        that the firearm was initially purchased or initially obtained by Ms. Mays but it was
        his now.

2 RP at 228.

        Hughes-Simmons was then arrested and charged with two counts of unlawful possession

of a controlled substance with intent to deliver fentanyl and heroin. Both counts had a firearm

sentencing enhancement. Hughes-Simmons was also charged with unlawful possession of a

firearm in the first degree.




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No. 58643-6-II


                                    II. MOTION TO WITHDRAW

       Prior to trial, Hughes-Simmons’ counsel, Dana Ryan, moved to withdraw based on the

“conflict of interest” created by a witness’s intended testimony and his ethical obligations to the

court. 1 RP at 4. Counsel informed the court that after trying for 45 days to reach Mays, who was

on the witness list, he finally spoke with her. Counsel stated,

       [B]ased upon what [Mays] told me, which was different than what was in the police
       report, a conflict arose under [Rules of Profession Conduct] RPC 3.3, which
       indicates that I have to basically present evidence, and I cannot present certain types
       of evidence before the tribunal.
               My client and I are in disagreement on that. He wants her to testify, but
       based upon my conversation with her, I cannot get around the conflict of interest
       that has arisen.
               ....
               And when I talked to her, I indicated, the first thing I said is, “I’m Gregory
       Simmons-Hughes’ attorney. I’m not your attorney. If you come here to testify in
       Pierce County and you testify consistent with what is in the police report, you have
       to be represented by counsel because that would subject you to potential criminal
       charges.” And so as I explained that to her and how I would get an attorney for her
       and we started to talk about that, the conversation became problematic for me
       because of certain things that came out.

1 RP at 4-5.

       The trial court asked Hughes-Simmons if he wanted to be heard on the motion to withdraw

and he replied,

       I’m just lost, Your Honor. To be honest, I’m just lost and confused. I haven’t been
       in contact with my attorney. I mean, I’m coming in in the dark, you know. I really
       don’t—I just want to get this done, get this all figured out, settled, but I really have
       no—it doesn’t bother me. I want to be able to have a fair trial if it does go to trial,
       you know, so that’s why, I mean, whatever you got to do, you got to do.

1 RP at 8-9. Relying on State v. Perra, No. 83418-5-I (Wash. Ct. App. Mar. 21, 2022)

(unpublished), http://www.courts.wa.gov/opinions/pdf/834185.pdf, the court stated that:




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No. 58643-6-II


              RPC [3.3(a)(4)] prohibits an attorney from presenting evidence that they
       know is false. RPC 3.3 let’s an attorney refuse to offer evidence that the lawyer
       reasonably believes is false.
              Every attorney has a special duty to prevent and disclose frauds upon the
       Court.
              Thus, an attorney’s loyalty is limited to legitimate lawful conduct and does
       not require taking steps or in any way assisting the client in presenting false
       evidence.

1 RP at 12-13.

       The trial court denied Hughes-Simmons’ counsel’s motion to withdraw concluding:

       Mr. Hughes-Simmons deserves timely justice, as does the State.
                I have considered as well the fact that whoever the next attorney is may very
       well suffer the same ethical dilemma that you are, Mr. Ryan. There is no indication
       that, in fact, it will be any different.
                So I have considered all of those things, and after having carefully
       considered all of those things and the Rules of Professional Conduct and the case
       cited and the cases that that case cites, I’m respectfully denying your motion for
       withdrawal.

1 RP at 14-15.

       Also prior to trial, when going over motions in limine, Hughes-Simmons’ counsel told the

trial court that “[Hughes-Simmons] will not stipulate as to any prior convictions.” 1 RP at 17.

                                            III. TRIAL

       At trial, Hamilton testified regarding the contents of the black safe. RP (Feb. 28, 2023) at

236. Hamilton said that there was a bag of fentanyl pills not packaged for sale as well as five 100-

count baggies of fentanyl that were prepackaged for sale and that this was consistent with what

Hughes-Simmons had told him about selling the drugs. Hamilton testified that there was also

approximately a half ounce of heroin which was more than a personal use amount as well as a

separate, smaller packaged quantity that was consistent with a personal use amount and consistent

with distribution. Hamilton stated that the Ziploc baggies and two scales found were both



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No. 58643-6-II


consistent with packaging narcotics to sell and that firearm possession was also consistent with

selling drugs for protection purposes and to prevent drugs from being stolen. He explained that in

his experience “a lot of people who are selling drugs carry firearms for their own protection so that

they are not robbed of their money or their product in what we call drug rips.” 2 RP at 249.

Detective Darin Sale testified that the firearm recovered was operable.

       Hamilton stated twice during trial that he believed there were ecstasy pills found in the

safe. Piek also testified that there were unknown yellow pills in the white safe. Hughes-Simmons’

counsel did not object to this testimony. When the State moved to admit the exhibit of the alleged

ecstasy pills, Hughes-Simmons’ counsel objected on relevance grounds stating, “I don’t believe

my client has been charged with possession of ecstasy, so this would not be relevant to any of the

charges at issue here. It would just be prejudicial.” 2 RP at 239-240. The trial court sustained this

objection and denied the motion to admit the alleged ecstasy pills because the probative value of

the evidence was substantially outweighed by the danger of unfair prejudice.

       The State also moved to admit exhibits 20 and 21 as evidence of Hughes-Simmons’

convictions from juvenile court for attempted residential burglary and unlawful possession of a

firearm in the second degree. Defense counsel objected stating, “these [documents] are more

prejudicial than probative, and I will leave it with that.” 2 RP at 254. The trial court overruled the

objection and admitted evidence of the previous convictions.

       After both sides had rested, the State brought up the potential prejudice Hughes-Simmons

might face due to his previous convictions being admitted. The State told the trial court that it had

brought a redacted copy of exhibit 20 should the defense move to use that version instead of the

previously admitted one.



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No. 58643-6-II


        The trial court stated that “[t]he defendant was offered an Old Chief stipulation. He

declined that, and that’s fine. That’s his right to accept it. It’s his right to decline it. . . . Both sides

have rested. That said, if you—you are not asking to enter an Old Chief stipulation at this point?”

3 RP at 373. Defense counsel responded, “I should talk to my client about that, Your Honor. I

didn’t previously. I think that—I don’t know if he really understood that analysis, and I’m not sure

if we are too late in the game to do that.” 3 RP at 373. The court responded, “You might be. Both

sides have rested.” 3 RP at 373.

        The State clarified that it was just proposing a redaction. Exhibit 20 was withdrawn and

exhibit 20A was admitted, which redacted Hughes-Simmons’ conviction for unlawful possession

of a firearm in the second degree.

        The jury found Hughes-Simmons guilty of both counts of unlawful possession of a

controlled substance with intent to deliver and found that he was armed with a firearm for both

offenses. The jury also found him guilty of unlawful possession of a firearm in the first degree.

                          IV. MOTIONS FOR A NEW TRIAL AND SENTENCING

        At a sentencing hearing, defense counsel asked the trial court to appoint Hughes-Simmons

new counsel. Hughes-Simmons expressed frustration regarding his retained counsel, stating,

        Your Honor, he has not given me no advice. He has been ineffective. He’s not
        answering none of my phone calls. He complains about me giving him money, and
        that’s what this whole conflict is. He is not working for me because I have not
        finished giving him the rest of the money, and I feel like he would not deserve the
        rest of the money because he has not given me adequate representation on this case.

6 RP at 445. The court orally stated that it would appoint the Department of Assigned Counsel to

represent Hughes-Simmons.

        Roughly six weeks later Hughes-Simmons filed a motion for a new trial pro se.



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No. 58643-6-II


       At another sentencing hearing some five weeks later, Hughes-Simmons was represented

by counsel, John Cyr.4 Hughes-Simmons moved the trial court to allow him to proceed pro se.

After inquiring into why Hughes-Simmons wanted to represent himself and advising him of the

disadvantages of self-representation, the court granted his motion. Sentencing was continued until

September 8.

       In early July, new counsel appeared on Hughes-Simmons’ behalf. In late August Hughes-

Simmons’ new counsel filed a motion to continue sentencing again. The trial court denied this

motion.

       Just prior to the sentencing hearing, Hughes-Simmons’ counsel filed a motion for a new

trial pursuant to CrR 7.5(a), arguing that Hughes-Simmons received ineffective assistance of

counsel at trial and that the court erred by holding a sidebar conference regarding the use of

peremptory strikes without memorializing it on the record. The motion requested an extension of

time under CrR 7.5(b), a new trial and, in the alternative, an evidentiary hearing to further develop

the record. Attached to the motion was a declaration from defense investigator, Howard Hayes,

who was hired to try to obtain the client file from Hughes-Simmons’ trial counsel, Ryan. Hayes

stated that after making contact, Ryan told him he would get the client file when he could and that

“perhaps when he [Hughes-Simmons] sends me a check for trying his case I can get to it.” Clerk’s

Papers (CP) at 139. The motion, including appendices totaled 356 pages.

       At the sentencing hearing, defense counsel renewed the motion to continue sentencing, in

part because defense counsel had not received the client file from Hughes-Simmons’ prior counsel.




4 It is unclear from the record whether Cyr was from the Department of Assigned Counsel or not.




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The court denied this motion. The court also addressed the motion for a new trial and stated, “I’m

not inclined to hear a motion for a new trial at this time based on the recent filing.” 8 RP at 477.

       The trial court sentenced Hughes-Simmons to 159 months of confinement and 12 months

of community custody.

       Hughes-Simmons appeals.

                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Hughes-Simmons argues there was insufficient evidence to support his convictions on the

firearm sentencing enhancements. We disagree.

A. Legal Principles

       We review challenges to the sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d

857, 867, 337 P.3d 310 (2014). When reviewing a sufficiency of the evidence claim, we must

determine “‘whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found guilt beyond a reasonable doubt.’” In re Pers. Restraint of

Arntsen, 2 Wn.3d 716, 724, 543 P.3d 821 (2024) (quoting State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992)). “A claim of insufficiency admits the truth of the State’s evidence and all

inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. This standard of

review is deferential, “and questions of credibility, persuasiveness, and conflicting testimony must

be left to the jury.” In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011).

       To prove a person is armed for purposes of the firearm sentence enhancement, “the State

must prove (1) that a firearm was easily accessible and readily available for offensive or defensive

purposes during the commission of the crime and (2) that a nexus exists among the defendant, the



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No. 58643-6-II


weapon, and the crime.” State v. Sassen Van Elsloo, 191 Wn.2d 798, 826, 425 P.3d 807 (2018).

To determine if there is a nexus between the defendant, the weapon, and the crime, we look “at

the nature of the crime, the type of weapon, and the circumstances under which it was found.” Id.

at 827. “This nexus requirement is critical because ‘[t]he right of the individual citizen to bear

arms in defense of himself, or the State, shall not be impaired.’” State v. Neff, 163 Wn.2d 453, 462,

181 P.3d 819 (2008) (quoting WASH. CONST. art. I, § 24.).

       A defendant need not be armed at the time of arrest to be armed for the purposes of a

firearm enhancement, and “the State need not establish with mathematical precision the specific

time and place that a weapon was readily available and easily accessible, so long as it was at the

time of the crime.” State v. O'Neal, 159 Wn.2d 500, 504-05, 150 P.3d 1121 (2007).

       Hughes-Simmons relies on State v. Gurske, 155 Wn.2d 134, 118 P.3d 333 (2005), in

arguing he was not armed for purposes of the firearm sentencing enhancement. In Gurske, the

defendant was arrested for driving with a suspended license. Id. at 136. The arresting officer

searched Gurske’s vehicle and found a backpack behind the driver’s seat that contained an

unloaded firearm, a firearm magazine, and methamphetamine. Id.

       Gurske was charged and convicted of possession of a controlled substance while armed

with a deadly weapon. Id. On appeal, the Washington Supreme Court reversed, concluding that

when the officer stopped Gurske, there was no evidence that Gurske could readily remove the

firearm from the zipped backpack, and there was no evidence he had easy access to use the firearm

against someone while he was in possession of the drugs. Id. at 143-44.

       However, in Sassen Van Elsloo, the court clarified that the mere proximity of the defendant

to the firearm is not the salient question. See 191 Wn.2d at 826. In Sassen Van Elsloo, officers



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searched Sassen Van Elsloo’s vehicle and found numerous items consistent with drug sales,

including a shotgun in the cargo hold, a large amount of drugs, baggies, and a digital scale. Id. at

802-03. Sassen Van Elsloo was charged with nine felony counts, five of which had firearm

enhancements. Id. at 803.

       On appeal, the Washington Supreme Court reiterated that the relevant question for

purposes of the firearm sentencing enhancement is whether the firearm was “easily accessible and

readily available for use for either offensive or defensive purposes.” Id. at 826. The court stated

that “when the crime is of a continuing nature, such as a drug operation, a nexus exists if the

firearm is ‘there to be used’ in the commission of the crime.” Id. at 828 (quoting Gurske, 155

Wn.2d at 138). The court ultimately found there was sufficient evidence to find a nexus between

the shotgun and Sassen Van Elsloo’s possession and distribution of drugs. Id. at 830. The court

relied in part on the fact that the gun “was found less than a foot from the backpack, which

contained the drugs[,]” the gun had a shell in the magazine and could be readily fired, and the gun

was placed in the car in such a way that it could be quickly grabbed. Id.

B. Analysis

       The State presented sufficient evidence that Hughes-Simmons was engaged in possessing

illegal drugs with intent to deliver and was armed with a firearm. Here, unlike Gurske, Hughes-

Simmons was charged with possession with intent to deliver rather than mere possession of a

controlled substance. There is a significant difference between those crimes. Possession with the

intent to deliver involves participation in activity in which, according to Hamilton’s testimony,

there is significant potential for violence. This is a matter of common understanding. Hamilton

further testified that Hughes-Simmons told him the drugs and the firearm belonged to him and that



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he was selling the fentanyl pills in 100-packs for $600. Hamilton also stated that the smaller

packaged heroin found was consistent with an amount used for distribution purposes. Like Sassen

Van Elsloo, the firearm was found right next to the drugs and the other instrumentalities of the

drug selling operation. The firearm had a round in the chamber and was readily capable of being

fired. Further, Hamilton testified that possession of a firearm was consistent with the sale of

narcotics and that drug sellers would often carry firearms to defend against “drug rips,” in which

the seller is robbed of their money or drugs. 2 RP at 249.

       Hughes-Simmons’ suggestion that the gun’s location in a locked safe demonstrates it was

not readily available for offensive or defensive use is unpersuasive. Viewing the evidence in the

light most favorable to the State, the firearm’s presence in the location where the drugs and other

instrumentalities of the operation were stored could lead a rational trier of fact to conclude that the

firearm was “there to be used” in the commission of the drug sales. See Sassen Van Elsloo, 191

Wn.2d at 828. A rational trier of fact could also conclude that there was a nexus between Hughes-

Simmons, the firearm, and the drug distribution. Accordingly, sufficient evidence supported the

jury’s verdict on the firearm enhancements.

                             II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Hughes-Simmons alleges he received ineffective assistance of counsel on three grounds.

As we discuss below, we disagree with two of the contentions and decline to review the third.

       To prove ineffective assistance of counsel, a defendant must show (1) counsel’s

representation was so deficient it fell “‘below an objective standard of reasonableness’” and (2)

that deficiency prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011) (quoting and applying test from Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.



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No. 58643-6-II


Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to satisfy either requirement defeats the claim. State v.

Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024).

       First, “[t]he defendant must overcome ‘a strong presumption that counsel’s performance

was reasonable.’” Id. at 130 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).

Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of

counsel. Kyllo, 166 Wn.2d at 863. A “defendant can rebut the presumption of reasonable

performance by demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s

performance.’” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101

P.3d 80 (2004)). Specifically, to show ineffective assistance of counsel for failure to object, “a

defendant must show that an objection would likely have been sustained.” State v. Fortun-Cebada,

158 Wn. App. 158, 172, 241 P.3d 800 (2010). Further, “the decision ‘to call a witness is a matter

of legitimate trial tactics that presumptively does not support a claim of ineffective assistance of

counsel.’” In re Pers. Restraint of Quintero, 29 Wn. App. 2d 254, 286, 541 P.3d 1007 (quoting

State v. Davis, 174 Wn. App. 623, 639, 300 P.3d 465 (2013)), review denied, 3 Wn.3d 1018 (2024).

“‘A defendant can overcome this presumption by showing that counsel failed to adequately

investigate or prepare for trial.’” Id. (quoting Davis, 174 Wn. App. at 639).

       Second, prejudice requires showing that but for counsel’s deficient performance, “there is

a reasonable probability . . . the result of the proceeding would have differed.” State v. Estes, 193

Wn. App. 479, 488, 372 P.3d 163 (2016). “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280

P.3d 1102 (2012) (quoting Strickland, 466 U.S. at 694). “[T]he ultimate ‘question is whether there

is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt



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respecting guilt.’” Bertrand, 3 Wn.3d at 129 (quoting Strickland, 466 U.S. at 695). Therefore,

“[p]rejudice exists when there is ‘a probability sufficient to undermine [the court’s] confidence in

the outcome.’” Id. (alteration in original) (quoting Strickland, 466 U.S. at 694).

A. Alleged Conflict of Interest

        First, Hughes-Simmons argues he received ineffective assistance of counsel because his

counsel created a conflict of interest by not calling Mays to testify and failing to adequately present

a defense. We disagree.

        1. Legal Principles

        Our court has recently addressed this issue in Perra, No. 83418-5-I, which the trial court

here relied on. In Perra, trial counsel refused to call Perra as a witness because the defendant

indicated he was going to present false testimony. Id., slip op. at 4-5. This court held that there

was no conflict of interest created by counsel’s refusal to present false testimony, and that the RPC

actually required counsel not to present this testimony. Id., slip op. at 8-9. While Perra is

unpublished and not binding, we find its sources and reasoning compelling.

        Under RPC 3.3(a)(4), an attorney is prohibited from presenting evidence they know to be

false. RPC 3.3(e) lets an attorney “refuse to offer evidence that the lawyer reasonably believes is

false.” An attorney’s duty of loyalty to their client is “limited to legitimate, lawful conduct” and

does not require “taking steps or in any way assisting the client in presenting false evidence.” Nix

v. Whiteside, 475 U.S. 157, 166, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Therefore, “a defendant

has no legitimate interest that conflicts with [their] attorney's obligation not to tolerate perjury and

to adhere to the Rules of Professional Conduct.” State v. Berrysmith, 87 Wn. App. 268, 277, 944

P.2d 397 (1997).



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        2. Analysis

        Here, Hughes-Simmons cannot show that counsel’s refusal to call a witness who he

believed was going to present false testimony was deficient performance. Despite trial counsel’s

characterization of his refusal to call Mays to testify as a “conflict of interest,” it was not. 1 RP at

4. Pursuant to RPC 3.3(a)(4), Hughes-Simmons’ trial counsel was prohibited from offering

testimony he knew to be false, and under RPC 3.3(e), he was allowed to refuse to offer testimony

he reasonably believed to be false. Counsel based his conclusion that Mays would present false

testimony on the conversation he had with her and what she told him she was going to testify to at

trial. Hughes-Simmons fails to show how counsel’s belief based on this conversation was

unreasonable. Hughes-Simmons fails to demonstrate how counsel’s adherence to the RPC created

a legitimate conflict between himself and defense counsel, as a defendant has no legitimate interest

that conflicts with their attorney’s obligation to adhere to the RPC. Further, the decision to call a

particular witness lies within the discretion of trial counsel, and Hughes-Simmons fails to show

that his counsel did not adequately investigate or prepare for trial. Therefore, his ineffective

assistance of counsel claim due to an alleged conflict of interest created by counsel’s refusal to

call a witness fails.

B. Uncharged Possession of Ecstasy

        Second, Hughes-Simmons argues he received ineffective assistance of counsel because his

counsel failed to object to testimony regarding his alleged unlawful possession of ecstasy that was

not charged. We disagree.

        Even if Hughes-Simmons could show deficient performance, he cannot show prejudice.

Despite counsel’s failure to object to three instances of testimony regarding the ecstasy pills,



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counsel did object to the admission of the ecstasy pills being admitted as evidence. Further, this

testimony did not overshadow the overwhelming evidence against Hughes-Simmons, including

Hamilton’s testimony that Hughes-Simmons confessed to owning the contents of the black safe

and selling drugs and his testimony regarding the drugs, firearm, baggies, and scales as evidence

consistent with drug sales. Therefore, Hughes-Simmons cannot show the result of the proceeding

would have differed had his counsel objected to the testimony regarding the ecstasy.

C. Old Chief Stipulation

       Third, Hughes-Simmons alleges he received ineffective assistance of counsel because

counsel did not request an Old Chief stipulation. We disagree.

       1. Legal Principles

       Under RCW 9.41.040(1)(a), a person commits unlawful possession of a firearm in the first

degree “if the person owns, accesses, has in the person’s custody, control, or possession, or

receives any firearm after having previously been convicted . . . in this state or elsewhere of any

serious offense.” “‘The existence of a constitutionally valid prior conviction is an essential element

of the offense, one the State must prove beyond a reasonable doubt.’” State v. Lopez, 107 Wn.

App. 270, 276, 27 P.3d 237 (2001) (quoting State v. Reed, 84 Wn. App. 379, 384, 928 P.2d 469

(1997)).

       “In Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), the

United States Supreme Court recognized the prejudicial effect that evidence of a defendant’s prior

conviction may have on the trial.” State v. Streepy, 199 Wn. App. 487, 502, 400 P.3d 339 (2017).

Accordingly, the Court announced that “a trial court abuses its discretion when it fails to accept a

[defendant’s] stipulation to a prior conviction upon [the defendant’s] request.” State v. Humphries,



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181 Wn.2d 708, 717, 336 P.3d 1121 (2014) (emphasis omitted). “The most the jury needs to know

is that the conviction admitted by the defendant falls within the class of crimes that [the legislature]

thought should bar a convict from possessing a gun.” Old Chief, 519 U.S. at 190-91.

        2. Analysis

        Here, Hughes-Simmons’ counsel did not request an Old Chief stipulation and indicated,

after both sides had rested, that he had not gone over the potential for such a stipulation with his

client. Hughes-Simmons stipulating to previous unnamed convictions could have kept his

convictions for attempted residential burglary and unlawful possession of a firearm in the second

degree from reaching the jury through testimony. On the other hand, the decision whether to offer

an Old Chief stipulation is a tactical one entrusted to defense counsel. See, e.g., Streepy, 199 Wn.

App. at 504. The risk of offering an Old Chief stipulation is obvious: the jury is liable to speculate

about the crime the defendant committed. The jury might speculate that it is a far more serious

crime than the actual conviction, which could be detrimental to the defendant. Allowing the jury

to hear what the actual conviction was prevents the risk of this type of speculation. As there are

potential advantages and disadvantages to any decision in this situation, we will not second guess

trial counsel’s decision on this matter.

        However, even if Hughes-Simmons could show that counsel performed deficiently by

failing to request an Old Chief stipulation, Hughes-Simmons cannot show prejudice resulting from

counsel’s failure to do so, as there was overwhelming evidence supporting his conviction. Nothing

suggests that the proceeding would have differed had the jury not been told the specific nature of

Hughes-Simmons’ previous convictions because even if that evidence had come in under an Old

Chief stipulation, the jury could still rely on Hughes-Simmons’ own statements to Hamilton that



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No. 58643-6-II


the drugs and the firearm were his and that he sold the drugs. The jury could also rely on

Hamilton’s testimony regarding the drugs, firearm, baggies, and scales as evidence consistent with

drug sales. Accordingly, we conclude Hughes-Simmons has failed to show prejudice and,

therefore, failed to show that he received ineffective assistance of counsel.

                                     III. MOTION TO WITHDRAW

       Hughes-Simmons argues the trial court erred in denying counsel’s motion to withdraw

based on trial counsel’s perceived “conflict of interest.” Br. of Appellant at 52. We disagree.

A. Legal Principles

       We “review RPC conflict issues, and related motions to withdraw, de novo.” State v.

O'Neil, 198 Wn. App. 537, 542, 393 P.3d 1238 (2017). While withdrawal is usually left to the trial

court’s discretion, “whether a conflict exists requiring withdrawal is a question of law.” Id. at 543.

B. Analysis

       Here, as explained above, there was no actual conflict of interest requiring Hughes-

Simmons’ counsel to withdraw. Hughes-Simmons had no legitimate interest that conflicted with

his attorney’s obligation to adhere to the RPC. Therefore, the trial court did not err in denying

counsel’s motion to withdraw.

                                    IV. MOTION FOR A NEW TRIAL

       Hughes-Simmons argues the trial court erred in refusing to consider his motion for a new

trial. Because Hughes-Simmons presents inadequate briefing on this assignment of error, we

decline to consider his argument.

       RAP 10.3(a)(6) requires that an appellate brief contain “argument in support of the issues

presented for review, together with citations to legal authority and references to relevant parts of



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No. 58643-6-II


the record.” We “will not consider claims insufficiently argued by the parties.” State v. Elliott, 114

Wn.2d 6, 15, 785 P.2d 440 (1990); Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App.

474, 486, 254 P.3d 835 (2011) (“We will not consider an inadequately briefed argument.”).

       Here, Hughes-Simmons has failed to identify the appropriate standard of review, failed to

indicate whether this error is subject to harmless error analysis, and failed to cite apposite legal

authority5 supporting his argument for why the trial court erred in not considering his motion for




5
  The section of Hughes-Simmons’ brief related to this assignment of error contains citation to one
authority: In re Pers. Restraint of Fowler, 197 Wn.2d 46, 50, 479 P.3d 1164 (2021) (holding that
equitable tolling was warranted to allow petitioner time to file a personal restraint petition due to
the misconduct of his previous counsel). This authority, however, is not relevant to Hughes-
Simmons’ argument regarding the trial court’s consideration of an untimely filed motion for a new
trial.


                                                 19
No. 58643-6-II


a new trial. His failure to provide relevant citations to legal authority supporting his argument is

fatal to his claim, and we decline to address its merits.6

                                          CONCLUSION

       Sufficient evidence supported the firearm sentencing enhancements. Hughes-Simmons

fails to show he received ineffective assistance of counsel, and the trial court did not err in denying

counsel’s motion to withdraw. Further, we decline to consider his argument that the trial court

erred in refusing to consider the motion for a new trial. Accordingly, we affirm.




6
  If we were to address the merits of this claim, we note that CrR 7.5(b) requires that the motion
be brought within ten days of the verdict. The jury returned guilty verdicts on March 3, 2023.
Hughes-Simmons initially filed this motion on May 15, but failed to pursue it by asking for a
hearing. Then, almost four months later, on the date set for sentencing, Hughes-Simmons’ new
counsel filed a new motion for a new trial. One of the arguments set forth in the motion is also
raised in this appeal, namely whether trial counsel was ineffective in failing to call Mays as a
witness. We conclude in this opinion that Hughes-Simmons has not demonstrated ineffective
assistance of counsel. The second argument raised in the motion for new trial is that the trial court
erred in conducting a side bar conference during voir dire without later memorializing for the
record what was discussed at the sidebar. To the extent Hughes-Simmons argues his right to a
public trial was violated, there was no closure here where the parties struck jurors at a sidebar that
was not memorialized. In State v. Effinger, we held that there was no closure where parties
exercised peremptory and for cause strikes at a sidebar that was not transcribed. 194 Wn. App.
554, 561-62, 375 P.3d 701 (2016); see also State v. Love, 183 Wn.2d 598, 606-07, 354 P.3d 841
(2015). The conclusion was based on that fact that the record included the case sheet showing
which jurors were excused, the questioning of potential jurors took place in open court in front of
everyone, no one was asked to leave the courtroom, and the jury was empaneled in open court.
Effinger, 194 Wn. App. at 561-62; Love, 183 Wn.2d at 606-07. Similarly, here, while we do not
have the jury selection sheet in the record before us, the questioning of potential jurors took place
in open court, no one was asked to leave the courtroom, and the jury was empaneled in open court.
Therefore, we conclude there was no closure, and Hughes-Simmons’ has not demonstrated that
his right to a public trial was violated.


                                                  20
No. 58643-6-II


         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




                                                             CRUSER, C.J.

We concur:




         VELJACIC, J.




         BIRK, J.7




7
    Judge Birk is serving in Division Two of this court pursuant to RCW 2.06.040.


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