                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            August 16, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 47069-1-II

                                Respondent,

         v.

 JUSTIN MICHAEL HART,                                             PUBLISHED OPINION

                                Appellant.

       WORSWICK, P.J. — Justin Hart appeals his conviction and sentence for bail jumping.

Hart argues that (1) the bail jumping to-convict jury instruction omitted an essential element of

the offense, (2) the State failed to present sufficient evidence to convict him of bail jumping, (3)

the trial court violated his confrontation right by admitting certain evidence at trial, and (4) the

sentencing court erred by ordering him to pay legal financial obligations (LFOs) and his costs of

incarceration without first inquiring into his ability to pay those LFOs and incarceration costs.

Hart has also filed a supplemental brief seeking waiver of appellate costs. We affirm Hart’s

conviction and accept the State’s concessions regarding Hart’s sentence. Therefore, we remand

for the trial court to consider Hart’s ability to pay discretionary LFO’s. Additionally, we

exercise our discretion to waive appellate costs.
No. 47069-1-II



                                               FACTS

          On February 6, 2014, the State charged Hart by amended information with one count of

bail jumping, alleging that he failed to appear at a September 9, 2013 hearing.1 At trial, three

witnesses testified for the State. Angel Benneman testified that she was working as deputy clerk

on July 22, 2013, and that Hart was present in the courtroom when his case was called.

Benneman further testified that at the July 22 hearing, Hart was ordered to appear in court on

September 9. Benneman stated that Hart’s defense counsel prepared Hart’s order to appear,

which order was admitted into evidence without objection. Hart and the trial court judge had

signed the order to appear, which stated, “IT IS ORDERED THAT: The Defendant shall

personally appear for the following: . . . Pretrial 9/9/13 9 a.m.” Exhibit 5.2 Benneman testified

that the order accurately reflected what took place in court on July 22.

          During Benneman’s testimony the trial court admitted, over Hart’s hearsay objection, a

video recording of the July 22 hearing. The video recording was played for the jury and showed

that the trial court judge had told Hart that he was required to appear at a September 9 pretrial

hearing. Benneman stated that the video accurately reflected what took place in court that day.

          Staci Myklebust testified that she was working as deputy clerk on September 9, and that

Hart did not appear for his hearing. Myklebust stated that she knew Hart did not appear at the


1
    The State originally charged Hart with several felonies but withdrew those charges before trial.
2
  The July 22 order to appear also informed Hart that his failure to appear at a scheduled hearing
“may result in the issuance of a warrant for your arrest and may constitute the crime of bail
jumping (RCW 9A.76.170), even if you’ve been released on your personal recognizance
(without posting bail).” Exhibit 5 (capitalization omitted).
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No. 47069-1-II



September 9 hearing because she had prepared the minute sheet for his September 9 pretrial

hearing and had circled “did not” appear. Report of Proceedings (RP) at 37. Myklebust further

testified that the trial court issued a bench warrant for Hart’s arrest based on his failure to appear.

       The final witness for the State, Cowlitz County Sheriff’s Detective Rob Stumph, testified

that he arrested Hart pursuant to the bench warrant. At the conclusion of the State’s case, the

trial court read a stipulation to the jury that stated that “on September 9, 2013 the Defendant was

facing charges that he had committed crimes classified as Class B and Class C felonies in

Cowlitz County Superior Court.” RP at 43.

       The trial court provided the jury with the following to-convict jury instruction:

               To convict the defendant of the crime of bail jumping, each of the following
       elements of the crime must be proved beyond a reasonable doubt:
               (1) That on or about September 9, 2013, the defendant failed to appear
       before a court;
               (2) That the defendant was facing charges that he had committed crimes
       classified as class B and C felonies in Cowlitz County Superior Court; and
               (3) That the defendant had been released by court order or admitted to bail
       with knowledge of the requirement of a subsequent personal appearance before that
       court; and
               (4) That all of these acts occurred in the State of Washington.
               If you find from the evidence that each of these elements has been proved
       beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
               On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty to return
       a verdict of not guilty.

Clerk’s Papers (CP) at 58. The jury found Hart guilty of bail jumping.

       At sentencing, the trial court did not inquire into Hart’s ability to pay his costs of

incarceration and LFOs, instead stating:
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No. 47069-1-II



       We’re kind of in this impossible position of predicting where they’re going to be
       because generally the day somebody goes into custody nobody has the ability to
       pay. So I’ll leave that [finding] there. It’s obviously a long term issue.

RP at 78. The trial court thereafter imposed on Hart a total of $2,025 in LFOs and incarceration

costs. Hart appeals his conviction and sentence.


                                            ANALYSIS

                                I. TO-CONVICT JURY INSTRUCTION

       Hart first contends that his conviction violated due process because the trial court’s to-

convict jury instruction relieved the State of its burden to prove each element of the offense

beyond a reasonable doubt. Specifically, Hart contends that the bail jumping to-convict

instruction relieved the State of its burden to prove the element that he had failed to appear at a

court hearing “as required.” Br. of Appellant at 5. We disagree.

       We review the adequacy of a challenged to-convict jury instruction de novo. State v.

Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). In general, a to-convict jury instruction must

contain every essential element of the charged offense. Mills, 154 Wn.2d at 7.

       To convict a defendant of bail jumping, the State must prove beyond a reasonable doubt

that the defendant “‘(1) was held for, charged with, or convicted of a particular crime; (2) was

released by court order or admitted to bail with the requirement of a subsequent personal

appearance; and, (3) knowingly failed to appear as required.’” State v. Williams, 162 Wn.2d

177, 183-84, 170 P.3d 30 (2007) (emphasis omitted) (quoting State v. Pope, 100 Wn. App. 624,

627, 999 P.2d 51 (2000)). Hart contends that the bail jumping to-convict instruction provided

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No. 47069-1-II



here relieved the State of its burden to prove the element that he had failed to appear at a hearing

“as required.” Br. of Appellant at 5.

       But the trial court’s bail jumping to-convict instruction, which mirrors the to-convict

instruction in 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 120.41

at 517 (3d ed. 2008), required the State to prove beyond a reasonable doubt that Hart “had been

released by court order or admitted to bail with knowledge of the requirement of a subsequent

personal appearance before that court.” CP at 58 (emphasis added). Accordingly, the trial

court’s to-convict instruction included the element of a required subsequent appearance and,

thus, we reject Hart’s challenge to the instruction.

                                II. SUFFICIENCY OF THE EVIDENCE

       Next, Hart contends that the State failed to present sufficient evidence to support his bail

jumping conviction because it did not present any evidence that he (1) failed to appear at his

September 9 hearing at “the specific required time,” or (2) had been “‘released by court order or

admitted to bail.’” Br. of Appellant at 9, 11. Again, we disagree.

       Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in the light most favorable to the State, could find the elements of the charged crime

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).

We interpret all reasonable inferences in the State’s favor. State v. Hosier, 157 Wn.2d 1, 8, 133

P.3d 936 (2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151

Wn.2d 179, 201, 86 P.3d 139 (2004). Credibility determinations are for the trier of fact and are

not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

                                                  5
No. 47069-1-II



A.     Failure To Appear at Specified Time

       Relying on State v. Coleman, 155 Wn. App. 951, 231 P.3d 212 (2010), Hart contends that

the State failed to present sufficient evidence to prove that he did not appear at his September 9

hearing “at the required specific time.” Br. of Appellant at 9. Because Coleman is

distinguishable from the present case, we disagree.

       In Coleman, the State presented evidence that the defendant was ordered to appear at a

9:00 a.m. hearing. 155 Wn. App. at 963. The State also presented evidence in the form of an

8:30 a.m. clerk’s minute entry, together with testimony explaining that the clerk’s minute entry

showed that the defendant did not appear at an 8:30 status hearing. 155 Wn. App. at 963. The

Coleman court held that the State’s evidence was insufficient to support the defendant’s bail

jumping conviction because “nothing before the jury established that Coleman was absent at the

time specified on his notice.” Coleman, 155 Wn. App. at 964.

       Here, the State presented evidence that Hart was ordered to appear at a 9:00 a.m. hearing,

but the record does not establish when the hearing was actually held. This absence of evidence

regarding the precise time of Hart’s hearing, however, does not undermine his bail jumping

conviction. Contrary to Hart’s assertion, Coleman does not require the State to present direct

evidence that Hart was not in the court at precisely 9:00 a.m. Rather, the Coleman court

concluded that the evidence was insufficient to prove bail jumping where it established only that

the defendant was not present in the court at a time prior to the time he was required to appear.




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No. 47069-1-II



       Unlike in Coleman, where the evidence established that the defendant had failed to

appear before the time he was ordered to do so, here the jury could reasonably infer that Hart

failed to appear at the time specified in his order based on Myklebust’s testimony that Hart did

not appear for his September 9 hearing, together with the clerk’s minute entry showing that Hart

failed to appear at that hearing and that the prosecutor had requested a bench warrant based on

Hart’s absence from the hearing. Viewing the evidence and all reasonable inferences therefrom

in a light most favorable to the State, we hold that sufficient evidence supported the jury finding

that Hart knowingly failed to appear at his September 9 hearing.

B.     Released by Court Order or Admitted to Bail

       Next, Hart asserts that the State failed to present sufficient evidence that he had been

released by court order or admitted to bail. Again, we disagree.

       Here, Hart stipulated that on September 9, 2013, he “was facing charges that [he] had

committed crimes classified as class B and C felonies in Cowlitz County Superior Court.” CP at

46. And the clerk’s minutes from Hart’s July 22 hearing states Hart had been booked and

released from custody. Viewed in a light most favorable to the State, a reasonable jury could

infer from this evidence that Hart had either been released from custody by court order or had

been admitted to bail. Accordingly, we hold that the State presented sufficient evidence to

support Hart’s bail jumping conviction.




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No. 47069-1-II



                                   III. CONFRONTATION RIGHT

       Next, Hart contends for the first time on appeal3 that the trial court violated his

confrontation right by admitting as evidence (1) the order requiring him to appear at the

September 9 hearing, and (2) the video recording of his July 22 hearing. Hart’s arguments fail.

       We review alleged violations of the Sixth Amendment right to confrontation de novo.

State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012). The Sixth Amendment guarantees a

criminal defendant’s right to “be confronted with the witnesses against him.” U.S. CONST.

amend. VI. The confrontation clause “bars the admission of ‘testimonial’ hearsay unless the

declarant is unavailable to testify and the defendant had a prior opportunity for cross-

examination.” State v. O’Cain, 169 Wn. App. 228, 235, 279 P.3d 926 (2012); see also State v.

Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). Generally, a statement is testimonial if

made to establish or prove some fact or if a reasonable person in the declarant’s position would



3
  We note that Division One of this court has held that a defendant must assert his or her
confrontation right at trial to preserve the issue for appeal. State v. O’Cain, 169 Wn. App. 228,
234-48, 279 P.3d 926 (2012) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed. 2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180
L. Ed. 2d 610 (2011)); see also State v. Fraser, 170 Wn. App. 13, 282 P.3d 152 (2012).
Notwithstanding the O’Cain court’s sound reasoning for imposing such a requirement, our
Supreme Court has held, albeit prior to Melendez-Diaz and Bullcoming, that a defendant may
raise an alleged confrontation violation for the first time on appeal if the defendant meets the
requirements of RAP 2.5(a)(3). State v. Hieb, 107 Wn.2d 97, 104-108, 727 P.2d 239 (1986).
We, therefore, adhere to our Supreme Court’s binding decision in Hieb until and unless our
Supreme Court overrules it and holds that confrontation clause claims per se may not be raised
for the first time on appeal. Accordingly, we analyze Hart’s claims under RAP 2.5(a)(3).


                                                 8
No. 47069-1-II



anticipate that his or her statement would be used against the accused in investigating or

prosecuting a crime. Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004); State v. Shafer, 156 Wn.2d 381, 389, 128 P.3d 87 (2006). The State bears the

burden of establishing that the statements are nontestimonial. O’Cain, 169 Wn. App. at 235.

A.     Order To Appear

       Hart first contends that the order requiring him to appear at the September 9 hearing

violated his confrontation right because the order was prepared by stand-in defense counsel who

did not testify at trial.4 Because Hart did not object to the admission of this evidence at trial, and

because admission of the order to appear did not implicate Hart’s confrontation right, he cannot

raise the issue for the first time on appeal under RAP 2.5(a)(3).

       To raise an issue for the first time on appeal under RAP 2.5(a)(3), the appellant bears the

burden of showing both that (1) the alleged error was “‘truly of constitutional dimension’” and

(2) the alleged error was “‘manifest.’” State v. Grimes, 165 Wn. App. 172, 186, 267 P.3d 454

(2011) (quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). Because Hart fails to

show that any error in admitting his order to appear infringed on his confrontation right, he

cannot raise this issue for the first time on appeal under RAP 2.5(a)(3).




4
  We note that this argument misconstrues the nature of a court order. It is of no consequence
that Hart’s order to appear was drafted by his stand-in counsel. The final order and any
statements contained therein were those of the trial court, not stand-in counsel.
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No. 47069-1-II



        The confrontation clause prohibits only admission of testimonial hearsay for which the

defendant has not had an opportunity for cross-examination. Koslowski, 166 Wn.2d at 417. And

we have held that public records, including court records, which are not created in anticipation of

criminal prosecution are nontestimonial. State v. Hubbard, 169 Wn. App. 182, 185-187, 279

P.3d 521 (2012) (holding that confrontation right not violated by admission of certified copy of

court record containing facts pertaining to defendant’s sentencing in a prior matter) (citing

Jasper, 174 Wn.2d at 112); see also State v. Benefiel, 131 Wn. App. 651, 656, 128 P.3d 1251

(2006) (Admission of judgment and sentence document does not violate confrontation clause

because it is not testimonial.).

        Here, the court’s order to appear was not created for the purpose of establishing some fact

or in anticipation of criminal prosecution. Crawford, 541 U.S. at 51-52. Rather, the court’s

order to appear was prepared to inform Hart of his obligation to appear in court at a certain date

and time. Therefore, the court’s order to appear was a nontestimonial public record falling

within the recognized hearsay exception for such records. Hubbard, 169 Wn. App. at 187 (citing

RCW 5.44.010, .040; Benefiel, 131 Wn. App. at 654-55). Hart cannot demonstrate a

confrontation violation based on the admission of the court order to appear. Thus, he fails to

demonstrate any error of constitutional magnitude allowing him to challenge admission of the

order to appear for the first time on appeal. RAP 2.5(a)(3).




                                                10
No. 47069-1-II



B.     Video Recording of July 22 Hearing

       Next, Hart asserts that the trial court violated his confrontation right by admitting as

evidence a video recording of his July 22 hearing, at which the pretrial hearing judge ordered

him to appear at the September 9 hearing. Assuming without deciding that Hart’s hearsay

objection preserved his confrontation challenge on appeal under RAP 2.5(a)(3), we hold that the

statements on the video did not constitute testimonial hearsay and, thus, the admission of the

video did not violate Hart’s right of confrontation.

       Here, Hart asserts that the following statement by the pretrial hearing judge contained on

the video recording of his July 22 hearing constituted testimonial hearsay:

              October 14th. Trial will be set for the week of October 14, readiness will
       be October 10 at 9 AM, pretrial will be September 9, at 9 AM. You are required to
       appear on those dates and times.

RP at 31. We disagree that this statement is testimonial hearsay. The pretrial hearing judge’s

recorded statements merely set forth the dates for trial and pretrial hearings and informed Hart of

his requirement to appear at court on those dates. As with the court’s order to appear, the judge’s

statements were not testimonial because they were not made for the purpose of establishing some

fact or in anticipation of criminal prosecution. Crawford, 541 U.S. at 51-52.

       Moreover, even if the pretrial hearing judge’s statements constituted testimonial hearsay

subject to the confrontation clause, any error in admitting the video recording would be harmless

beyond a reasonable doubt. See Jasper, 174 Wn.2d at 117 (applying constitutional harmless

error analysis to confrontation violation). Evidence of the pretrial hearing judge’s statements on

the admitted video recording was cumulative to the evidence presented in Hart’s order to appear,

                                                 11
No. 47069-1-II



which order similarly established that he had knowledge of his requirement to appear in court on

September 9. Because the pretrial hearing judge’s statements merely repeated the information

contained on Hart’s order to appear, we are convinced beyond a reasonable doubt that any error

in admitting the video recording did not contribute to the jury’s verdict. Jasper, 174 Wn.2d at

117. Accordingly, we affirm Hart’s bail jumping conviction.

                                          IV. SENTENCING

         Finally, Hart contends that the sentencing court erred by ordering him to pay

incarceration costs and LFOs without first inquiring into his ability to pay such costs and LFOs.

The State concedes error and we accept the State’s concession.

         RCW 10.01.160(3) requires sentencing courts to “consider the defendant’s current or

future ability to pay . . . LFOs based on the particular facts of the defendant’s case.” State v.

Blazina, 182 Wn.2d 827, 834, 344 P.3d 680 (2015). RCW 9.94A.760(2) similarly requires

sentencing courts to “make a determination regarding the defendant’s ability to pay” before

imposing costs of incarceration. State v. Arredondo, 190 Wn. App. 512, 537-38, 360 P.3d 920

(2015), review granted in part on other grounds, 185 Wn.2d 1024 (2016). The State concedes

that the sentencing court failed to make these individualized inquiries of Hart’s ability to pay

before imposing LFOs and incarceration costs. Accordingly, we remand for the trial court to

make an individualized inquiry into Hart’s ability to pay discretionary LFOs and incarceration

costs.




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No. 47069-1-II



                                      V. APPELLATE COSTS

       Hart has also filed a supplemental brief opposing appellate costs in light of State v.

Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), asserting that he does not have the ability to

pay. In light of Hart’s indigent status, and our presumption under RAP 15.2(f) that he remains

indigent “throughout the review” unless the trial court finds that his financial condition has

improved, we exercise our discretion to waive appellate costs in this matter. RCW 10.73.160(1).

       We affirm Hart’s conviction but remand for the trial court to make an individualized

inquiry into Hart’s ability to pay LFOs and incarceration costs.




                                                                     Worswick, P.J.

 We concur:




Lee, J.




Melnick, J.




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