Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 87116-1-I Respondent, v. DIVISION ONE DESHAWN C. CLARK, UNPUBLISHED OPINION Appellant. CHUNG, J. — DeShawn Clark was convicted of assault in the second degree and unlawful possession of a firearm in the first degree. He claims the trial court erred by denying his motion for a mistrial after members of the jury observed outbursts and altercations in and out of the courtroom involving spectators supporting either Clark or the victims, by denying his motion to dismiss a juror who had been called an epithet by a spectator, and by failing to further investigate other jurors who had witnessed the events involving the spectators. He also claims the court erred by failing to sever or bifurcate the unlawful firearm possession charge from the assault charge with a firearm enhancement. Finally, he argues that his conviction for unlawful possession of a firearm violates the Second Amendment. We affirm. BACKGROUND In September 2021, Joshua Puloka was charged with committing a mass shooting at La Familia, a bar in Des Moines, Washington, where five people were shot. No. 87116-1-I/2 DeShawn Clark’s cousin was one of three who were killed, and another of his relatives survived the shooting. In November 2021, Clark shot into Puloka’s home. At the time, Joshua’s wife, Sandy, 1 their two-year-old granddaughter, and their adult son were in the house. The bullet did not hit any person. Bullet holes were found in the front window of the house, a children’s toy, and the living room wall. Clark was charged with assault in the second degree and unlawful possession of a firearm in the first degree. Prior to trial, Clark moved to sever or, in the alternative, bifurcate trial on the assault and firearm charges due to prejudice. The trial court denied the motion. Clark’s trial began on July 15, 2024. The State called Sandy to testify. Immediately after she was called to testify, there was a verbal disruption in the courtroom among the spectators. The court tried to calm the courtroom. The verbatim report of the proceedings captured several statements by unidentified members of the gallery, 2 including one person saying, “That dude -- that dude right there -- that dude shot my daughter’s toy,” and another responding, “Didn’t nobody shoot your daughter. Didn’t nobody shoot your daughter.” The court again attempted to calm the courtroom, warning that it would have the deputies escort out anyone who did not take a seat, and then swore Sandy in as a witness. Shortly into her testimony, there was a disturbance outside the courtroom. The court called a recess. After the jury was escorted out, the court engaged in a Bone 1 Because Joshua and Sandy share a last name, we refer to them by their first names. 2 The court clerk’s notes reflect the outburst was caused by Clark’s family. 2 No. 87116-1-I/3 Club 3 analysis and closed the courtroom for the remainder of Sandy’s testimony. Clark expressed concern that he “[could ]not have a fair trial based on the events that have already occurred.” The court suggested that it continue with and conclude Sandy’s testimony and hear any motion from Clark the next day. Clark agreed to the court’s plan. No further disruptions occurred during Sandy’s testimony, and the courtroom was reopened after she completed her testimony. After the jury left the courtroom, the court asked Clark if he wanted to argue the motion then or the next morning, and Clark requested to present the motion the next day. The court then asked both parties to be prepared the next day to inform the court whether to give a curative instruction to the jury “about what happened today and in terms of disregarding it and, if so, what the instruction would say . . . an actual instruction and the verbiage that you’d like in it.” Approximately 10 minutes after the jury was released that day, as the jury left the courthouse, some jurors observed another verbal altercation outside the courthouse between some of the spectators who had been in the courtroom earlier that day. Some jurors observed physical altercation between the supporters of each party, while others did not. Juror 11 video-recorded part of the altercation, with juror 12 visible in the background of the video. Kent Police Department vehicles arrived on scene, and some jurors also observed this. During the incident, a woman screamed at two jurors walking together, juror 9 and another juror who was never identified. She called juror 9 “an SOB” and yelled other “vitriol” toward both jurors. 3 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995) (five-factor balancing test for closing the courtroom). 3 No. 87116-1-I/4 Clark filed a motion for mistrial at 9:00 a.m. the next morning. His motion stated that the fighting was between family members of Clark and the Pulokas, and Clark’s “mother, sister and cousin were attacked by [Sandy]’s family.” Clark also asserted that during the fighting, “a juror on Mr. Clark’s panel walked by.” The motion also included factual statements regarding the outburst in the courtroom based on Clark’s attorney’s personal observations that day. At a hearing on the motion, the court raised the concern that defense counsel made statements in the motion that the court did not remember and were not reflected in the audio recording. After discussion with Clark’s counsel and the State about options to enter the events into the record as evidence, the court decided to withhold ruling on Clark’s mistrial motion until Clark could obtain further evidence regarding the courtroom outburst, including a transcription and/or a recording and declarations or testimony of witnesses. The court also decided to give a curative instruction to the jury, to which Clark and the State agreed, that asked the jury members to notify the bailiff if they (1) “observed anything that [they] believe is related to this case outside of the courtroom”; (2) could not disregard “anything that [they] observed, whether inside the courtroom or outside the courtroom”; or (3) “if for any reason, either what we’ve just described or otherwise, [they] now believe that [they] cannot be fair and impartial in this trial.” The court read the agreed curative instruction to the jury and immediately took a short break for the jury to process the instruction. After the break, the bailiff reported the following to the court: So we have jurors 10, 14, 1, and 9 that all said that they witnessed the altercation outside yesterday. They all said they have no issue separating it and being fair and impartial. However, Juror 1 suggested that she feel[s] that some other jurors are being more nervous than they were. She had 4 No. 87116-1-I/5 not heard people specifically talking about the incident, but she just noticed that jurors are more nervous. The court decided to allow the State’s three witnesses who had appeared that day for the trial to testify and then, afterward, to privately question jurors 1, 9, 10, and 14. During the morning break between trial witnesses, the bailiff reported that she received emails from jurors 4 and 6 identifying themselves as having witnessed the event outside the courthouse. At the end of the morning’s testimony and after the lunch break, the court began to privately question the jurors who had identified themselves to the court: jurors 1, 4, 6, 9, 10, and 14. Each of the jurors testified as to what they saw and each testified that they still felt they could follow the jury instructions and be a fair and impartial juror. No juror testified that they associated the conduct they observed more strongly with the Clarks or the Pulokas except for juror 9, who recognized the woman who had called him an “SOB” as a spectator from court who sat on the defendant’s side of the courtroom. After the court finished questioning the jurors, Clark sought the court’s assistance in obtaining video or transcript from the previous day’s proceeding. Clark also requested to further question juror 1 about her “concern that some jurors were scared and that she worried for the other jurors.” The court denied the request for further questioning, agreeing with the State that it would be based on speculation, “it’s better to hear it directly from the source than to hear the perceptions of the third party,” and all the jurors who identified themselves had already been questioned. Clark also moved to substitute another juror for juror 9, arguing: [T]his juror was visibly affected by these obscenities [shouted at him]. He found them offensive. At the same time, when asked the question whether he can be fair and impartial, well, of course he said yes, that can be, and I 5 No. 87116-1-I/6 would urge the Court to substitute this juror for one of the alternates. I simply do not believe he can be fair and impartial. I think that he gave a perfunctory answer, but his feelings about being called a son of a bitch and having obscenities yelled at him by what appeared to him to be somebody associated with defense are quite powerful. The State objected, and the court denied the substitution request. That evening, the court forwarded the parties an email that juror 14 sent to the bailiff, alleging that a member of the jury had taken a video of the altercation outside the courthouse and tried to show it to jurors 14 and 15. The parties brought the issue to the court the following morning. Clark asked the court to identify the juror who took the video and excuse the juror out of an “abundance of caution,” as “[t]he danger is that if the juror did withhold information when confronted so to speak, the tendency would be perhaps not to be truthful. And so we don’t want to take that chance.” The parties worked with the bailiff and juror 14 to identify the juror who recorded the video as juror 11. The court questioned juror 11, who confirmed he had the video but denied trying to show anyone else. The court dismissed juror 11 by agreement of the parties. The next week, as Clark’s counsel prepared to argue the mistrial motion, Clark’s counsel realized that juror 12—who had not identified himself the prior week as having witnessed the altercation outside the courtroom—appeared in the video taken by juror 11. At Clark’s request, the court questioned juror 12 that morning, who indicated he did not connect the fight to the case and had no concerns about his ability to be fair and impartial on the jury. After the lunch break, Clark moved to dismiss juror 12 “because of the mere fact that he did not report originally hearing or witnessing anything out of the ordinary.” The court denied the motion, distinguishing juror 12 from juror 11 because Juror 11 said that he saw the disruption or fight and he did think it related to this case, and still didn’t report it, and that’s why I excused him. 6 No. 87116-1-I/7 Juror 12 said that he did not think it – did not, it was not in his head that it was related to this case, and so I took it that that’s why he did not report it. And I found him credible, and that’s why I didn’t excuse him. The court then heard argument on Clark’s motion for mistrial, which the court denied, reasoning: [A] mistrial is a drastic remedy and is not to be declared unless I find that I cannot deal with the irregularity by questioning jurors . . . and or instructing them. We all spent a lot of time constructing how the jurors might be questioned, what they would be asked, and then how they should be instructed in terms of whether they could be fair and impartial. We had a very robust voir dire process by which we told jurors about looking deep within themselves to determine if they had any bias, unconscious or conscious, that might affect their ability to be fair and impartial. And then we again alluded to that when I talked to them about this issue. All those of them who came forward except Juror Number 11, I believed, I found credible, and seemed committed to both excluding that what happened in the Court and what they saw outside of the Court from their decision-making and ensuring that both the State and Mr. Clark can have a fair and impartial trial despite what occurred. And so for those reasons and also as outlined in . . . the State’s response to the motion, the motion for a mistrial is denied. Clark was convicted of assault in the second degree and unlawful possession of a firearm in the first degree. The court sentenced him to 63 months of confinement for the assault conviction and 67 months for the firearm conviction, to be served concurrently, followed by 17 months of community custody. Clark timely appeals. DISCUSSION On appeal, Clark challenges the trial court’s (1) denial of his motion for mistrial; (2) denial of his motion to dismiss juror 9 and failure to further investigate certain jurors; and (3) denial of his motion to sever or bifurcate the charges. Further, Clark argues his 7 No. 87116-1-I/8 firearm conviction violates his Second Amendment right to bear arms. We address each claim in turn. I. Motion for Mistrial A trial court “should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). We review the trial court’s denial of a mistrial for abuse of discretion. Id. Here, Clark’s motion for mistrial was based on an irregularity—the outbursts in and outside of the courtroom, the altercation outside of the courtroom, and the inflammatory comments directed at juror 9. “ ‘In determining the effect of an irregularity, we examine (1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it.’ ” Emery, 174 Wn.2d at 765 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). In Emery, the defendant, Emery, was on trial with his co-defendant, Olson, in a trial for kidnapping, robbery, rape, and accomplice rape. Id. at 746. During Emery’s testimony, Olson interrupted, stating: “You are sitting there lying, man. . . . This is perjury. . . . I [have] been wrongly accused.” Id. at 750. The trial court excused the jury, instructed the jury to disregard Olson’s comments, and cautioned Olson that he could be removed. Id. Later during Emery’s testimony, Olson interrupted again, saying, “ ‘That’s a lie. I was not there.’ The court stated, ‘Mr. Olson, not another outburst, sir.’ ” Id. (citation omitted). Our Supreme Court held the trial court did not abuse its discretion in denying a mistrial based on Olson’s outbursts. The court reasoned that “Olson’s outbursts were 8 No. 87116-1-I/9 consistent with his later testimony, so they were merely cumulative of other evidence properly presented at trial.” Id. at 766. Further, the court noted that “the trial court excused the jury and then properly instructed the jury to disregard Olson’s initial outburst,” and “jurors are presumed to follow the court’s instructions.” Id. Here, as in Emery, the information conveyed during the outbursts was cumulative of other evidence properly presented at trial, and the court instructed the jury to ignore the outbursts and altercations observed in and out of court. As described above, the outbursts captured by the audio recording and transcribed in the verbatim report of proceedings consisted of statements that Clark shot at Sandy’s granddaughter’s toy. The jury heard testimony from both Sandy and an investigating police officer describing the bullet hole in the toy. Moreover, the conflict between the families that the jury observed was also presented through evidence at trial that Clark was related to two victims of the La Familia shooting. Further, the court gave the jury a curative instruction agreed to by both parties, which read: [I]t is your duty as a jury to decide the facts in this case based upon the evidence presented to you during the trial. Evidence is a legal term. Evidence includes testimony of witnesses, documents, and physical objects. The only evidence you are to consider consists of testimony of witnesses and exhibits admitted into evidence. You also will receive oral and written instructions from me and hear arguments of the lawyers. Anything else that you see, hear, or learn about, whether it occurs or occurred inside the courtroom or outside the courtroom is not evidence, and you must disregard it. It must play no part in your consideration of this case, and you must not mention or discuss it now or in deliberations. Additionally, the jurors were directed to tell the bailiff if they observed or heard anything outside the courtroom connected to the case or that could affect their ability to be an impartial juror. Thus, as in Emery, the court took steps to minimize any effect from 9 No. 87116-1-I/10 information outside of the evidence, and we presume the jurors followed the court’s instructions. See Emery, 174 Wn.2d at 765-66. Accordingly, we hold that the trial court here did not abuse its discretion in denying Clark’s motion for mistrial. II. Juror Investigations and Motion to Dismiss Juror 9 Clark claims the court erred by not taking certain actions to investigate the jurors after the events involving spectators inside and outside the courtroom, including holding a hearing and dismissing juror 9. We disagree. “Washington and other courts have granted broad discretion to the trial judge in conducting an investigation of jury problems.” State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72 (2005). “Discretion is abused when the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). When a trial court learns of an issue with the jury, “the trial court should first attempt to resolve the problem by reinstructing the jury.” Elmore, 155 Wn.2d at 774. Then, the trial court “retains discretion to investigate” juror issues “in the manner most appropriate for a particular case.” Id. “Trial courts can ‘gain a balanced picture of the situation’ by questioning some or all of the jurors.” State v. Norman, 200 Wn.2d 828, 839, 523 P.3d 751 (2023) (quoting Elmore, 155 Wn.2d at 774). First, Clark argues the trial court erred by failing to follow up to determine the individuals to whom juror 1 was referring when she indicated she thought other jurors appeared scared or unable to be impartial. Clark argues that the trial court was required to “hold an evidentiary hearing to determine the seriousness of any effect on bias or impartiality.” 10 No. 87116-1-I/11 However, none of the cases Clark cites in support of these arguments indicates the court was required to follow up in the specific manner he suggests with either juror 1 or juror 9. To the contrary, one of the cases he cites explicitly states that “there is no rule . . . requiring the . . . court to hold an evidentiary hearing upon every allegation” of juror impropriety. United States v. Saya, 247 F.3d 929 (9th Cir. 2001). And in Smith v. Phillips, while the Court held that “[d]ue process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen,” it noted that “[s]uch determinations may properly be made at a hearing,” but did not require such a hearing. 455 U.S. 209, 217 (1982) (emphasis added). See also Remmer v. United States, 347 U.S. 227, 228-30 (1954) (where unknown individual contacted jury foreman and suggested “he could profit” if the verdict were favorable to the petitioner, Court reversed and remanded “with directions to hold a hearing to determine whether the incident complained of was harmful to the petitioner” because the court did not know from the record “what actually transpired, or whether the incidents that may have occurred were harmful or harmless”). Here, regarding the concerns raised by juror 1 that other jurors appeared scared or unable to be impartial, the court decided not to follow up with juror 1 herself because it was “better to hear it directly from the source than to hear the perceptions of the third party.” And while the trial court here did not hold a formal evidentiary hearing, it questioned every individual juror who identified themselves as having observed an incident they connected to the case. After determining it was juror 11 who did not come forward despite filming the altercation outside the courtroom, the court dismissed juror 11 No. 87116-1-I/12 11. Clark does not provide authority suggesting the court was required to take further inquiry beyond this investigation or hold a hearing. Unlike in Remmer, here, the court’s investigation allowed it to determine “what actually transpired, or whether the incidents that may have occurred were harmful or harmless.” 347 U.S. at 229. Clark also claims the trial court erred by failing to investigate and dismiss juror 9 after someone outside the courthouse—who juror 9 recognized as a spectator who had been sitting on the defendant’s side of the courtroom during the proceedings—called juror 9 “an SOB.”4 We disagree. A trial court is required to dismiss a juror if “in the opinion of the judge, [the juror] has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.” RCW 2.36.110. “Case law, the juror bias statute, our Superior Court Criminal Rules[,] and scholarly comment all emphasize that the trial court is in the best position to determine a juror’s ability to be fair and impartial.” State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991). “It is the trial court that can observe the demeanor of the juror and evaluate and interpret the responses.” Id. When reviewing a court’s decision to excuse a juror, “trial courts are accorded considerable deference because they are ‘uniquely situated to make the credibility determinations that must be made . . . where a juror’s motivations and intentions are at issue. ’ ” 4 Clark also claims “[t]he trial court was required to identify and question the juror that juror 9 said was with them when insults were directed toward them outside the courthouse.” However, Clark never requested that the court specifically determine which juror was with juror 9 when the female spectator screamed at them outside the courthouse. Therefore, Clark did not preserve a claim based on the court’s alleged failure to follow up with juror 9. We decline to review this argument for the first time on appeal. RAP 2.5. 12 No. 87116-1-I/13 Norman, 200 Wn.2d at 838-39 (alteration in the original) (internal quotation marks omitted) (quoting Elmore, 155 Wn.2d at 778). Here, the court gave all the jurors, including juror 9, a curative instruction to ignore “[a]nything else that you see, hear, or learn about, whether it occurs or occurred inside the courtroom or outside the courtroom” and was instructed to privately contact the bailiff if they “heard, saw or learned about anything outside the courtroom that [he thought] might relate to this case.” In response, juror 9 raised the experience outside the courtroom involving a spectator he recognized from the defendant’s side of the courtroom. After asking juror 9 about this experience, the court then engaged in the following colloquy with juror 9 regarding his ability to remain fair and impartial in the case: THE COURT: And then the last one was, if for any reason you now think you cannot be fair and impartial in this case, and I’ll just reflect back to you what I see in terms of your demeanor, that you were pretty -- you found it very off-putting that someone that you associated with Mr. Clark had sworn at you and seem to be calling you an SOB. Did I accurately say what I’ve perceived? JUROR: Yes. THE COURT: And so that raises the question is, can you be fair and impartial to Mr. Clark? Can you be fair and impartial to Mr. Clark? And I really do ask you to, as we said in voir dire, look deep within yourself to answer that question. And it’s no problem if the answer is no. JUROR: Mr. Clark had nothing to do with this. Period. Has no bearing on his case whatsoever. THE COURT: All right. And so it sounds like the answer to the question, if for any reason you now think you cannot be fair and impartial in this case is an emphatic no. You believe you can be fair and impartial. Is that right? JUROR: Yes. 13 No. 87116-1-I/14 Clark argues that the court was required to dismiss juror 9 because “[n]o juror could reasonably set aside the knowledge that supporters of the person the jury was being asked to convict had targeted them specifically with obscenities and vitriol.” But juror 9 testified to the contrary, and the trial court found juror 9’s testimony credible: [W]hen [juror 9] was talking about what happened to him, and that’s why I followed up with him, he clearly had feelings about it, and negative feelings about the person who directed obscenities at him. He also thought that that was someone associated with Mr. Clark. And that’s why when I didn’t just simply ask, can you still be fair and impartial, I asked him to provide more information. And about that, he was very emphatic in a way that was very credible to me, which is that he views Mr. Clark as having nothing to do with that person, even if that person is associated with him in terms of sitting on his side of the courtroom. And I found his response to that, that he would be fair and impartial to Mr. Clark, incredibly credible. And based on that, I would not grant that -- if that had happened during voir dire, I would not have granted a for-cause challenge. Even had everything that happened outside the courtroom and that he saw happened during jury selection, I wouldn’t have granted a for-cause challenge, because I believed him when he said that he saw Mr. Clark, he needed to make the judgment about Mr. Clark based on the evidence in the case and not at all about someone associated – some behavior with someone associated with Mr. Clark. Clark argues that “[t]he jurors’ yes answers that they could be fair cannot compete for influence against this frightening experience over an average juror’s lay ability to decide a case in a calm and impartial way,” citing State v. Witherspoon, 82 Wn. App. 634, 637-38, 919 P.2d 99 (1996). But Witherspoon is inapposite. Witherspoon concerned a challenge for cause during voir dire in a case in which an African American woman was charged with drug possession. 82 Wn. App. at 637-38. During voir dire, a venireperson unequivocally admitted to having prejudice toward African Americans, associating them with drug dealers. Id. There were attempts to rehabilitate the juror, and “he ultimately agreed” that he would presume the defendant innocent. Id. at 638. Division Three of this court held that the trial court abused its discretion in denying the 14 No. 87116-1-I/15 challenge for cause because the rehabilitation “does not go far enough to mitigate a categorical statement by a juror that he is prejudiced against African Americans because of what he has seen and read.” Id. The racial bias issue in Witherspoon, presented in a different procedural posture, is markedly distinct from this case and does not speak to the influence of “frightening experience[s]” on impartiality, as Clark suggests. Here, juror 9 did not make any explicitly biased statement and gave far more than a “ ‘yes’ answer” during rehabilitation, explaining to the court he could still be impartial regardless of what he experienced because “Mr. Clark had nothing to do with this. Period. Has no bearing on his case whatsoever.” Clark further argues “[t]he experience of juror 9 can be described by an objective viewer as one of threat, which cannot be a proper sentiment to operate under when deciding a criminal case,” citing United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999). In Sarkisian, one member of the jury received a strange phone call that she believed was a threat related to the case, which she told other jurors about. 197 F.3d at 980-81. There, “the court and all counsel agreed to hold individual in camera meetings with each juror” to ask what the juror had told them and whether the juror’s story would impair their ability to be fair and impartial. Id. All of the jurors answered that the incident did not affect their impartiality or ability to serve on the case. Id. The court held that the trial court “took sufficient steps to ensure that the jurors were not prejudiced.” Id. at 981. Here, unlike the juror in Sarkisian, juror 9 did not experience the interaction with the spectator as an objective threat. Rather, if anything, Sarkisian supports a conclusion that the trial court sufficiently ensured that juror 9 was not “tainted” by the incident, as 15 No. 87116-1-I/16 the jurors in both cases were instructed to ignore the incident and were questioned individually by the court to ensure the incident did not prejudice them. Thus, we conclude that under the “broad discretion” trial courts are afforded for investigating juror impropriety, Elmore, 155 Wn.2d at 773, the trial court acted well within its discretion in investigating the concerns raised by juror 1 and the incident involving a spectator shouting at juror 9, as well as by declining to dismiss juror 9. III. Motion To Sever or Bifurcate Clark argues that the trial court abused its discretion in denying his motion to sever or bifurcate trial on the assault charge from that for unlawful possession of firearm because “Mr. Clark would be prejudiced by the jury’s likely inference of guilt to the present crime based on learning of evidence of a previous commission of a ‘serious’ offense.” We hold that Clark waived his claim as to severance and the trial court did not abuse its discretion in denying bifurcation. Under CrR 4.4(a)(2), “[i]f a defendant’s pretrial motion for severance was overruled he may renew the motion on the same ground before or at the close of all the evidence. Severance is waived by failure to renew the motion.” See also State v. McCabe, 26 Wn. App. 2d 86, 526 P.3d 891 (2023) (“A defendant waives the severance issue if he or she fails to properly renew their motion at trial.”). Here, Clark did not renew his motion to sever at the close of evidence. Accordingly, his severance claim is waived on appeal. As to bifurcation, “[a] trial court’s decision on bifurcation is generally reviewed for an abuse of discretion.” State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). 16 No. 87116-1-I/17 Bifurcation of a charge that has a prior offense as an element “is constitutionally permissible but not required.” Id. at 197-98. In Roswell, our Supreme Court reasoned, Any prejudice created by evidence of [a] prior conviction may be countered with a limiting instruction from the trial court. . . . If a prior conviction is an element of the crime charged, evidence of its existence will never be irrelevant. . . . Within the parameters we have laid out, trial courts may exercise their sound discretion to reduce unnecessary prejudice where practical. Id. at 198. There, a prior conviction of a felony sexual offense elevated the defendant’s charge from a gross misdemeanor to a class C felony. Id. at 190. Our Supreme Court held the court did not err where it declined to bifurcate, but it limited the State to eliciting only that the prior offense was a prior sexual offense and prohibited evidence that it was specifically child molestation. Id. at 191, 195. Thus, here, Clark must point to more than being “prejudiced by the jury’s likely inference of guilt to the present crime based on learning of evidence of a previous commission of a ‘serious’ offense” to demonstrate that the trial court abused its discretion in denying bifurcation. As the Roswell court noted, “[o]ne can always argue that evidence that tends to prove any element of a crime will have some prejudicial impact on the defendant.” 165 Wn.2d at 198. Further, here, the trial court accepted the parties’ Old Chief 5 stipulation regarding Clark’s prior serious offense convictions, which minimized the risk of unfair prejudice from the fact of prior conviction. And the jury was instructed “not to speculate as to the nature of the prior conviction” and “not [to] 5 Old Chief v. United States, 519 U.S. 172 (1997) (while the general rule is that the defendant cannot force the State to accept a stipulation, recognizing exception for when there is a prior conviction that is an element that the State needs to prove). See also State v. Taylor, 193 Wn.2d 691, 699, 444 P.3d 1194 (2019) (“Washington courts have adopted the exception recognized in Old Chief and applied it to our state’s identical evidence rule, ER 403.”). 17 No. 87116-1-I/18 consider the stipulation for any other purpose.” We presume juries follow instructions. State v. Allen, 182 Wn.2d 364, 380, 341 P.3d 268 (2015). Further, the trial court had a tenable reason to deny the motion to bifurcate. Evidence presented to the jury at trial showed that Clark was on active Department of Corrections (DOC) supervision and was wearing an ankle monitor at the time of the shooting. The trial court reasoned that because the unlawful possession of firearm charge required proof of a prior conviction and the jury instruction for that charge instructed the jury to not speculate about that prior conviction, not bifurcating the trial would further prevent the jury from speculating about the reason for the ankle monitor. Finally, Clark argues that the trial court’s order denying bifurcation violated his right to effective assistance of counsel because the trial court “ ‘interfere[d] . . . with the ability of counsel to make independent decisions about how to conduct the defense.’ ” Appellant’s Br. at 44 (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). We reject this argument as well. “ ‘[T]he Sixth Amendment right to counsel, while fundamental, is not a right without limitation.’ ” State v. Afeworki, 189 Wn. App. 327, 330, 358 P.3d 1186 (2015) (alteration in original) (internal quotation marks omitted) (quoting Bailey v. Commonwealth, 38 Va. App. 794, 803, 568 S.E.2d 440 (2002)). The right to counsel “ ‘ is not a right subject to endless abuse by a defendant.’ ” Id. (internal quotation marks omitted) (quoting Bailey, 38 Va. App. at 803). Clark provides no authority to support his argument that denying a motion to bifurcate violates the Sixth Amendment. “Where no authorities are cited in support of a proposition, the court is not required to search out 18 No. 87116-1-I/19 authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). We hold that the trial court did not abuse its discretion when it declined to bifurcate Clark’s charges. IV. Second Amendment Claim Clark was charged with unlawful possession of a firearm based on his prior convictions for human trafficking in the second degree and promoting prostitution in the first degree. Clark stipulated to these convictions as the bases for the unlawful possession charge. Both are “serious offenses” as defined in RCW 9.41.010(43). 6 Human trafficking in the second degree is a “violent offense” as defined in RCW 9.94A.030(59)7 and promoting prostitution in the first degree is a “most serious offense” as defined in RCW 9.94A.030(33). Clark argues that RCW 9.41.040, 8 which makes it a crime for a person with a felony conviction to possess a firearm, is unconstitutional as applied to him because the State cannot prove that a restriction on the right to bear arms is consistent with this nation’s historical tradition of firearm regulation, as required by New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). He contends that the reference to “longstanding prohibitions on the possession of firearms by felons” in District of Columbia v. Heller, 554 U.S. 570, 626 (2008), “can only mean prohibitions in existence 6 RCW 9.41.010 has been amended since the events of this case. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute. 7 See RCW 9.94A.030(59) (violent offenses include all class A felonies); RCW 9A.40.100(4) (trafficking in the second degree is a class A felony). RCW 9.94A.030 and 9A.40.100 have been amended since the events of this case. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statutes. 8 RCW 9.41.040 has been amended since the events of this case. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute. 19 No. 87116-1-I/20 at the time of the founding,” and that “promoting prostitution was never addressed in the United States until the Mann [A]ct was passed in 1910.” We disagree that RCW 9.41.040 is unconstitutional either facially or as applied to Clark. In State v. Hamilton, 33 Wn. App. 2d 859, 565 P.3d 595, review granted, 4 Wn.3d 1037, 572 P.3d 1206 (2025), Division One rejected the argument that our state’s disarmament statutes are unconstitutional in light of N