                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          January 23, 2019

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 50397-2-II

                                 Respondent,

           v.

    ALBERT K. SMITH,                                       PUBLISHED IN PART OPINION

                                 Appellant.

         MELNICK, J. — Albert Smith appeals his convictions of theft in the first degree and identity

theft in the first degree. In the published part of this opinion, we conclude the trial court did not

err in applying the free crimes aggravating factor. In the unpublished portion, we conclude the

court did not abuse its discretion in denying a mistrial motion and it did not commit reversible

error in sentencing Smith. We also reject Smith’s assertions in his statement of additional grounds

(SAG) and supplemental SAG. We affirm Smith’s convictions and sentence.

                                               FACTS1

         Smith’s convictions are based on a series of checks he cashed at the expense of his wife’s

employer, Spaeth Transfer, a moving and storage company that operated out of Bremerton.

Smith’s wife, Sharyl Smith,2 worked as the company’s bookkeeper between October 2012 and

October 2015. Ultimately, Smith cashed 176 checks totaling $264,500 between December 2014



1
 The following facts relate to the published portion of this opinion. Additional relevant facts will
be related in the unpublished portion.
2
    To avoid confusion, we refer to Sharyl Smith by her first name. We intend no disrespect.
50397-2-II


and November 2015. A jury found Smith guilty of both identity theft in the first degree and theft

in the first degree. It also found that both crimes were major economic offenses.

       The State submitted a sentencing memorandum where it calculated Smith’s offender score

as 21. It requested an exceptional sentence above the standard range of 100 months on both counts

and that the sentences on each count be served consecutively. The State cited the jury’s finding of

the major economic offense aggravator as well as an additional aggravator that, because of Smith’s

high offender score, some of the current offenses would go unpunished. RCW 9.94A.535(2)(c).

The court determined Smith had an offender score in excess of 9.3

       The trial court sentenced Smith to the statutory maximum on each conviction count, 120

months, to be served consecutively. The trial court also orally found that Smith’s current offenses

did not constitute the same criminal conduct. It cited the State’s sentencing memorandum, which

argued that the crimes did not occur at the same time or place.

       The trial court entered written findings of fact supporting its exceptional sentence:

              (1) The offenses do not constitute same criminal conduct.
              (2) The jury found that the crimes were major economic offenses.
              (3) The defendant’s high offender score results in some crimes going
       unpunished if sentenced concurrently.

Clerk’s Papers (CP) at 193. Based on those findings, the court entered a conclusion of law that an

exceptional sentence was appropriate. Smith appeals.




3
  In the unpublished portion of this opinion, we conclude the court erred in calculating Smith’s
offender score; however, it clearly exceeded 9 points.


                                                2
50397-2-II


                                              ANALYSIS

I.        FREE CRIMES AGGRAVATING FACTOR

          Smith argues that the trial court erred in applying the free crimes aggravator,4 which applies

when some of the current offenses would otherwise go unpunished. He contends that the

aggravator does not apply in cases like this one, where only one conviction would go unpunished.

We disagree.

          A.     Principles of Statutory Interpretation

          The interpretation of a statute involves a question of law we review de novo. State v.

Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013). The primary goal of statutory interpretation is

to determine and give effect to the legislature’s intent. State v. Larson, 184 Wn.2d 843, 848, 365

P.3d 740 (2015). To determine legislative intent, we first look to the plain language of the statute.

Larson, 184 Wn.2d at 848. We consider the language of the provision in question, “‘the context

of the statute in which the provision is found, related provisions, and the statutory scheme as a

whole.’” Larson, 184 Wn.2d at 848 (internal quotation marks omitted) (quoting State v. Ervin,

169 Wn.2d 815, 820, 239 P.3d 354 (2010).

          If the plain meaning of a statute is unambiguous, we apply that plain meaning as an

expression of legislative intent. Larson, 184 Wn.2d at 848. To determine the plain meaning of an

undefined statutory term, we may look to the term’s dictionary definition. State v. Monfort, 179

Wn.2d 122, 130, 312 P.3d 637 (2013).

          A statute is ambiguous when it is subject to more than one reasonable interpretation.

Evans, 177 Wn.2d at 192-93. When a statute is ambiguous, we first attempt to resolve any

ambiguity and determine the legislature’s intent by considering principles of statutory


4
     RCW 9.94A.535(2)(c).


                                                    3
50397-2-II


construction, legislative history, and relevant case law. State v. Reeves, 184 Wn. App. 154, 158,

336 P.3d 105 (2014). If these indications of legislative intent are insufficient to resolve the

ambiguity, we must apply the rule of lenity and construe the statute in favor of the defendant.

Reeves, 184 Wn. App. at 158-59.

       B.      Legal Background

       A defendant’s standard sentencing range is based on his or her offender score. Under RCW

9.94A.525, a trial court calculates a defendant’s offender score based on prior convictions. RCW

9.94A.589(1)(a) provides that when a defendant is sentenced for multiple current offenses, the

offender score for each current offense is determined by treating the other current convictions as

prior convictions.

       The standard range sentence for both of Smith’s crimes reached its maximum with an

offender score of 9. RCW 9.94A.510; State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345

(2008). This fact means that when a defendant’s offender score equals or exceeds 9, other prior

and other current offenses do not increase the standard sentence range. Alvarado, 164 Wn.2d at

563. A defendant whose offender score is at or above 9 will have the same standard range sentence

regardless of the number of current or prior offenses. State v. France, 176 Wn. App. 463, 468-69,

308 P.3d 812 (2013). In this situation, a standard range sentence fails to punish the defendant for

having committed multiple current offenses. Alvarado, 164 Wn.2d at 563.

       The free crimes aggravator anticipates such a scenario and allows the trial court to impose

an exceptional sentence when “[t]he defendant has committed multiple current offenses and the

defendant’s high offender score results in some of the current offenses going unpunished.” RCW

9.94A.535(2)(c). Once the court determines that some of the defendant’s current offenses will go

unpunished, it has discretion to impose an exceptional sentence on all current offenses. France,



                                                4
50397-2-II


176 Wn. App. at 468-69. The trial court may make this determination without any finding by the

jury. RCW 9.94A.535(2).

       C.      Smith’s Crimes

       Here, Smith argues that the free crimes aggravator cannot apply when the defendant is

charged with only two current offenses because only one offense would be unpunished. He cites

to the language in RCW 9.94A.535(2)(c) that “some of the current offenses” would go unpunished.

(Emphasis added.). He argues that because “some” is synonymous with a “few,” this aggravator

is inapplicable when only a single offense is unpunished.5

       Smith’s interpretation is inconsistent with the plain language of RCW 9.94A.535(2)(c).

According to WEBSTER’S THIRD INTERNATIONAL DICTIONARY 2171 (2002) (Webster’s), “some of

the current offenses” can properly refer to a single offense. First, Webster’s states that when

“some” acts as a pronoun, as it does here, it can be used either in the singular or plural. Webster’s

at 2171. Second, there are two applicable definitions: “one person or thing among a number” and

“one indeterminate quantity, portion, or number as distinguished from the rest.” Webster’s at

2171. Either could apply to single or multiple unpunished offenses.6


5
  For support, Smith cites the Collins English Dictionary. However, we have found no Washington
case that relied on that dictionary as an authoritative source. It has been cited only twice, in both
instances as an alternative definition. See Jametsky v. Olsen, 179 Wn.2d 756, 766 n.5, 317 P.3d
1003 (2014); Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 895 n.10, 784 P.2d 507 (1990)
(Callow, C.J., dissenting).
6
 A recent unpublished decision, which we find persuasive, came to the same conclusion. State v.
Phillips, No. 35115-1-III, slip op. at 12 (Wash. Ct. App. May 29 (unpublished),
http://www.courts.wa.gov/opinions/pdf/351131_unp.pdf, review denied, 191 Wn.2d 1020 (2018).
“When we think about quantities that do not qualify as ‘some,’ we think of ‘all’ and ‘none.’ By
contrast, ‘one’ plainly qualifies as ‘some.’” Phillips, slip op. at 12. The court concluded that,
based on “the commonly understood meaning of ‘some,’ [the free crimes aggravator] applies
where a defendant’s high offender score would allow one crime to go unpunished.” Phillips, slip
op. at 12.


                                                 5
50397-2-II


       Smith also argues that the legislature’s use of “some” in the free crime aggravator must

mean more than one because the legislature has used the phrasing “one or more” in other places.

Br. of Appellant at 22-23; see RCW 9.94A.535(3)(h) (“The current offense involved domestic

violence . . . and one or more of the following was present.” (Emphasis added.)); RCW

9.94A.537(6) (“If the jury finds . . . one or more of the facts alleged by the state in support of an

aggravated sentence . . . .” (Emphasis added.)). He relies on a maxim of statutory construction

that when the legislature uses different terms, we presume that the legislature intended for those

terms to have a different meaning. See Foster v. Dep’t of Ecology, 184 Wn.2d 465, 473, 362 P.3d

959 (2015).

       But that maxim is only a presumption, and two factors demonstrate its inapplicability here.

First, the dictionary definition states that “some” may be used in the singular or plural, and can

refer to one or multiple things among a group. This definition is consistent with the remaining text

of RCW 9.94A.535(2)(c), which applies when the defendant has committed multiple offenses with

not all of them resulting in punishment. Applied here, two convictions plainly qualify as multiple

offenses, and one offense would go unpunished.

       Second, interpreting the free crimes aggravator to apply only when more than one crime is

unpunished leads to a strained result that is not supported by the statute’s text. Nothing in RCW

9.94A.535(2)(c) suggests that the legislature intended a defendant to avoid additional punishment

when he or she is convicted of two crimes at once, but not three. We avoid construing a statute in

a manner that results in unlikely or strained consequences. State v. Barbee, 187 Wn.2d 375, 389,

386 P.3d 729 (2017). State v. Phillips, No. 35115-1-III, slip op. at 13 (Wash. Ct. App. May 29,

2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/351131_unp.pdf, review denied,




                                                 6
50397-2-II


191 Wn.2d 1020 (2018), also addressed this issue and concluded that it would be arbitrary to allow

one crime to go unpunished but not two.

          Finally, Smith argues that we should apply the rule of lenity. The rule of lenity applies to

ambiguous criminal statutes, which we will strictly construe in the defendant’s favor. State v.

Breaux, 167 Wn. App. 166, 179, 273 P.3d 447 (2012). Because the free crimes aggravator statute

is not subject to two reasonable interpretations, it is not ambiguous, and the rule of lenity does not

apply.

          We therefore conclude that the trial court did not err in applying the free crimes aggravator

to impose an exceptional sentence on Smith.7 We affirm Smith’s convictions and sentence.

          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.06.040 it is so ordered.

                                        ADDITIONAL FACTS

          While working as Spaeth’s bookkeeper, Sharyl had responsibility for the company’s

payables and receivables accounts, which included identifying money remitted by customers,

paying for shipments, and paying bills. Sharyl also assisted drivers with their payments for various

expenses like fuel and truck repairs. To forward the necessary funds, Spaeth used a third-party

business, Comdata. When on the road, Spaeth’s drivers would have Comdata checks that they

could fill out and use as cash. To use a check, drivers would call Sharyl. She had a list of

preprinted numbers that corresponded to a certain dollar amount. A driver would fill out the check

using that number.




7
    In the unpublished portion of this case we analyze Smith’s other issues regarding his sentence.


                                                    7
50397-2-II


       After a driver used a check, Comdata would bill Spaeth. Spaeth would repay Comdata the

advanced funds plus a fee and deduct the total from the driver’s paycheck. Spaeth had a policy to

repay Comdata using hard-copy checks, rather than online. Sharyl had responsibility for issuing

Comdata check numbers, tracking which drivers used checks so Spaeth could bill those drivers,

and paying Comdata.

       When Sharyl left her position in October 2015, Jenay Ingalls became Spaeth’s bookkeeper.

Ingalls had been a long-time employee and would later become Spaeth’s president. She noticed

that Sharyl had started making payments to Comdata online, contrary to company policy. Ingalls

found this activity unusual, and when she asked the company’s president about the online

payments, he appeared stunned. Ingalls also found a box of Comdata checks in Sharyl’s desk.

Ingalls knew of no reason for Sharyl to have the checks. Spaeth did not hand out Comdata checks.

If a driver came to the office, Spaeth would give the driver money.

       Ingalls requested copies of the checks from Comdata. Almost all of them were written out

to Smith with some to Sharyl. Although Ingalls found documentation relating to checks that had

been used by drivers, she found none of the required paperwork for Comdata checks written out

to Sharyl or Smith. Ultimately, Smith cashed 176 Comdata checks totaling $264,500 at local

Moneytree branches between December 2014 and November 2015.

       The State charged Smith as both a principal and an accomplice with theft in the first degree

and identity theft in the first degree. Both charges alleged an aggravating factor of a major

economic offense.




                                                8
50397-2-II


I.     TRIAL

       In a pretrial motion, Smith moved to exclude Ingalls’s testimony that checks written to

Smith were unauthorized. Smith argued that Ingalls lacked personal knowledge about whether the

transactions had been authorized. The court granted Smith’s motion.

       During argument on the issue, the court clarified that Ingalls would be limited to testifying

on issues of which she had personal knowledge and that she could not make deductions based on

other information. The court stated that although the State had presented its argument as if Ingalls

knew who wrote the Comdata checks, Ingalls could not testify to that fact if she lacked personal

knowledge.

       During trial, the State presented Ingalls’s testimony regarding her discovery of the

Comdata checks when she transitioned into the bookkeeper position. The State asked about the

last of the Comdata checks:

       Q. [A]re you able to make out the date that this Comdata check was written?

       A. October 31, 2015.

       Q. And who was in charge of the finances at Spaeth Corporation on that date?

       A. Well, it would have been me.

       Q. Did you authorize this check?

       A. No. That’s written by Sharyl.

       Q. Now, the next-to-the-last page—

Report of Proceedings RP (Mar. 1, 2017) at 334-35 (emphasis added). Smith objected:

       [Defense counsel]: Objection. Personal knowledge there.

       THE COURT: I’m going to sustain the objection with regards to the witness’s
       statement that it was written by Sharyl.

               If you want to lay additional foundation, you can, [Prosecutor].


                                                 9
50397-2-II



       [Defense counsel]: I ask to strike that from the record as well.

       THE COURT: Members of the jury, you’re asked to disregard the statement about
       that check being written by Sharyl Smith.

                Do you want to lay additional foundation, [Prosecutor]?

       [Prosecutor]: No, Your Honor.

       Q. You did not write that check?

       A. No.

RP (Mar. 1, 2017) at 335-36.

       The following day, after the State rested, Smith moved for a mistrial based on Ingalls’s

testimony. The court denied the motion, stating that it instructed the jury to disregard the

testimony, that the court assumed that the jury followed its instruction, and that it had no reason to

believe otherwise. In closing argument, Smith again referenced Ingalls’s comment, stating that

the judge had instructed the jury to ignore it.

       The jury found Smith guilty of both identity theft in the first degree and theft in the first

degree. The jury also found that both crimes were major economic offenses.

II.    SENTENCING

       Before sentencing, the State filed a sentencing memorandum listing Smith’s criminal

history and calculating Smith’s offender score to be 21. The memorandum included a list of

Smith’s prior felony convictions from 1992 through his most recent prior conviction in 2012. As

proof of those convictions, the State attached a printout of Smith’s “individual case history,” which

listed all of Smith’s prior convictions.

       The State requested an exceptional sentence, above the standard range, of 100 months on

each count, to run consecutively. The State relied on two aggravating factors. First, the jury’s



                                                  10
50397-2-II


finding of the major economic offense aggravator, and second, some of the current offenses would

go unpunished.

       Smith disputed his offender score. He alleged that some of his prior convictions should be

considered to be the same criminal conduct. He did not specify which ones. Smith stated that he

did not have an opportunity to investigate but requested a continuance to allow him to do so. The

trial court denied the request, stating that it would proceed to sentencing.

       Smith also argued that the State’s individual case history listing his prior convictions was

insufficient to establish his criminal history by a preponderance of the evidence. In response, the

State filed certified copies of the judgement and sentence for Smith’s convictions from 1997

onward, which the State said accounted for an offender score of 15. Smith did not object to the

judgment and sentences. Lastly, Smith argued that his current offenses should not be scored

against each other because they were the same criminal conduct.

       The trial court sentenced Smith to the statutory maximum of 120 months on each count, to

be served consecutively. Leading up to its decision, the court commented,

       I don’t think when you combine the criminal history that Mr. Smith has with the
       amount of money that was stolen, with the condition of the owner of the business
       who was having to deal with this, . . . I don’t think you can have a clearly excessive
       sentence.

RP (Mar. 31, 2017) at 20. “[T]he only thing I can do at this point is . . . whatever I can to make

sure that Mr. Smith is not out in our community committing these offenses.” RP (Mar. 31, 2017)

at 20. The court concluded that, if someone asked why Smith did not get the maximum penalty,

“I don’t know what I would tell them. I’d say, ‘You’re right. You’re absolutely right.’” RP (Mar.

31, 2017) at 21.

       The trial court also found that Smith’s current offenses did not constitute the same criminal

conduct. It cited the State’s sentencing memorandum, which argued that the crimes did not occur


                                                 11
50397-2-II


at the same time or place. The court did not address Smith’s argument that some of his prior

offenses, which he did not identify, should be considered the same criminal conduct.

       The trial court entered written findings of fact supporting its exceptional sentence. Based

on those findings, the court concluded that an exceptional sentence was appropriate. In Smith’s

judgment and sentence, his offender score is listed as 21.

       Smith appeals.

                                            ANALYSIS

I.     MOTION FOR A MISTRIAL

       Smith argues that the trial court erred when it denied his motion for a mistrial, based on

Ingalls’s testimony. We disagree.

       We review a trial court’s denial of a mistrial motion for an abuse of discretion. State v.

Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A court’s denial of a mistrial motion is an

abuse of discretion “only ‘when no reasonable judge would have reached the same conclusion.’”

Emery, 174 Wn.2d at 765 (internal quotation marks omitted) (quoting State v. Hopson, 113 Wn.2d

273, 284, 778 P.2d 1014 (1989)).

       In evaluating a motion for a mistrial, we consider (1) the seriousness of the irregularity, (2)

whether the irregularity involved cumulative evidence, and (3) whether the court instructed the

jury to disregard the evidence. Emery, 174 Wn.2d at 765. We assesses these factors with deference

to the trial court because it is in the best position to discern prejudice. State v. Garcia, 177 Wn.

App. 769, 776-77, 313 P.3d 422 (2013).

       The trial court has broad discretion to cure irregularities at trial that result from a witness’s

improper statements. State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010). In some

instances, a curative instruction may be insufficient to remove any prejudicial effect. Gamble, 168



                                                  12
50397-2-II


Wn.2d at 177; Hopson, 113 Wn.2d at 284-85. We review whether the improper testimony, in the

context of all the evidence, was so prejudicial so as to prevent a fair trial. Gamble, 168 Wn.2d at

177. A trial court should grant a mistrial only if a fair trial will be ensured by nothing short of a

mistrial. Emery, 174 Wn.2d at 765.

        Here, none of the three factors weigh in favor of granting a mistrial. First, the irregularity

was not serious.8 As an initial matter, the allegedly improper testimony was not significant under

the circumstances. Ingalls made the comment spontaneously, while discussing her transition to

taking over the bookkeeping role from Sharyl and the final Comdata check. The State did not ask

a question that elicited the remark. The improper testimony may have passed unnoticed except for

Smith’s objection, his request for it to be stricken, and his reference to it in his closing argument.

        Second, Ingalls’s comment was largely cumulative of her other, properly admitted

statements. Ingalls testified that as bookkeeper, Sharyl was responsible for all parts of the check-

issuing process, i.e., providing Comdata check numbers, tracking where money was billed, and

paying Comdata. Although no other evidence expressly stated that Sharyl wrote the last Comdata

check, the check had a date for the Saturday immediately after Sharyl left the company. Ingalls,

who took over the bookkeeping role and would have been the person in charge of checks, testified

that she had not written it.

        Third, the trial court sustained Smith’s objection and instructed the jury to disregard

Ingalls’s testimony that Sharyl wrote the check. We presume that a jury follows the instructions

provided by the trial court. State v. Allen, 182 Wn.2d 364, 380, 341 P.3d 268 (2015).




8
  The State argues that the testimony was improperly excluded because Ingalls had personal
knowledge that Sharyl issued the check. But she never testified that she saw Sharyl write the
check, and testified only to facts that provided inferences to support her statement.


                                                  13
50397-2-II


        Smith also argues that Ingalls’s testimony violated a pretrial ruling prohibiting such

testimony. The record is unclear if the court strictly forbade testimony that Sharyl wrote the

checks, or if it merely limited Ingalls’s testimony to issues on which she had personal knowledge.

“[W]hat I want to make sure is that we’re limiting the scope of her testimony to what she has

personal knowledge of.” RP (Feb. 27, 2017) at 49. In either case, in response to Smith’s objection,

the trial court allowed the State to present additional foundation, suggesting that the court did not

view the error to be particularly egregious.

        We conclude that the trial court did not abuse its discretion in denying Smith’s motion for

a mistrial.

II.     OFFENDER SCORE CALCULATION

        Smith argues that the trial court erred in calculating his offender score by improperly

counting convictions that the State failed to prove, by failing to conduct a same criminal conduct

analysis for his prior convictions, and by ruling that his current convictions did not constitute the

same criminal conduct.

        The State concedes that the trial court erred in calculating Smith’s offender score, but

argues that any error was harmless because Smith’s offender score, properly counted, exceeded 9.

We accept the State’s concession and agree that any error was harmless.

        A.     Proof of Offender Score

        A trial court calculates a defendant’s offender score by accounting for the defendant’s prior

convictions “along with the ‘seriousness level’ of the current offense.” State v. Arndt, 179 Wn.

App. 373, 377-78, 320 P.3d 104 (2014) (internal quotation marks omitted) (quoting State v. Ford,

137 Wn.2d 472, 479, 973 P.2d 452 (1999)). A defendant’s offender score is the total points

accrued based on prior convictions and any other current offenses. RCW 9.94A.525; State v.



                                                 14
50397-2-II


Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014). This calculation establishes a defendant’s

presumptive standard sentencing range for each seriousness level. Arndt, 179 Wn. App. at 377.

          In calculating a defendant’s offender score, the existence of any prior convictions is a

question of fact. Arndt, 179 Wn. App. at 378. The State must prove prior felony convictions by a

preponderance of the evidence. Arndt, 179 Wn. App. at 378; see RCW 9.94A.500(1). Although

the best method of proving a prior conviction is for the State to produce a certified copy of the

judgment, the sentencing court may also admit other comparable documents of record or

transcripts of prior proceedings to establish a defendant’s criminal history. In re Pers. Restraint

of Adolph, 170 Wn.2d 556, 568, 243 P.3d 540 (2010). However, to prove the existence and validity

of a prior conviction the State must do more than present an unsupported criminal history

summary. State v. Hunley, 175 Wn.2d 901, 917, 287 P.3d 584 (2012).

          We review the trial court’s calculation of a defendant’s offender score de novo. Olsen, 180

Wn.2d at 472. We review underlying factual determinations for abuse of discretion. In re Pers.

Restraint of Toledo-Sotelo, 176 Wn.2d 759, 764, 297 P.3d 51 (2013). If a defendant’s standard

sentence range is the same regardless of a recalculation of his offender score, i.e., if the recalculated

score still exceeds 9, any error is harmless. State v. Priest, 147 Wn. App. 662, 673, 196 P.3d 763

(2008).

          Here, the record contains a judgment and sentence related to each of Smith’s convictions

from 1997 onward. However, the only evidence in the record supporting pre-1997 convictions is

Smith’s “individual case history,” attached to the State’s sentencing memorandum. This document

standing alone is insufficient to prove Smith’s criminal history. See Hunley, 175 Wn.2d at 917.

Therefore, we accept the State’s concession that it has failed to prove Smith’s criminal history for

the pre-1997 convictions.



                                                   15
50397-2-II


       When we consider only the offenses for which the State presented a judgment and sentence,

Smith’s offender score from prior felonies is 15. When we count his other current offense, Smith’s

offender score is 16. Although the trial court erred in including Smith’s convictions by including

his pre-1997 convictions, the error is harmless because, properly calculated, Smith’s offender score

still exceeded 9. See Priest, 147 Wn. App. at 673.

       B.      Same Criminal Conduct

               1.      Legal Principles

       When a trial court calculates a defendant’s offender score, multiple offenses that

encompass the same criminal conduct are counted as a single offense. This analysis applies both

to prior and current offenses. RCW 9.94A.525(5)(a)(i), .589(1)(a).

       The process for addressing prior offenses involves two parts. First, if a previous court

found that the prior offenses encompassed the same criminal conduct under RCW 9.94A.589(1)(a),

that determination is binding. RCW 9.94A.525(5)(a)(i); State v. Valencia, 2 Wn. App. 2d 121,

125, 416 P.3d 1275, review denied, 190 Wn.2d 1020 (2018). Second, if the defendant has any

other prior adult offenses for which sentences were served concurrently, the current sentencing

court must determine “whether those offenses shall be counted as one offense or as separate

offenses using the ‘same criminal conduct’ analysis found in RCW 9.94A.589(1)(a).” RCW

9.94A.525(5)(a)(i).

       When addressing current offenses, two or more offenses constitute the “same criminal

conduct” if they “require the same criminal intent, are committed at the same time and place, and

involve the same victim.” RCW 9.94A.589(1)(a). If any of these elements is missing, the offenses

are not the same criminal conduct. Valencia, 2 Wn. App. 2d at 125.




                                                16
50397-2-II


       The “same criminal conduct” definition generally applies narrowly to disallow most same

criminal conduct claims. Valencia, 2 Wn. App. 2d at 125. It is the defendant’s burden to establish

that two or more offenses encompass the same criminal conduct. Valencia, 2 Wn. App. 2d at 125.

Each conviction counts towards the defendant’s “‘offender score unless he convinces the court

that they involved the same criminal intent, time, place, and victim.’” Valencia, 2 Wn. App. 2d at

125 (quoting State v. Aldana Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013)).

       We review a sentencing court’s ruling on “whether two offenses encompass the same

criminal conduct for an ‘abuse of discretion or misapplication of law.’” Valencia, 2 Wn. App. 2d

at 126 (quoting Aldana Graciano, 176 Wn.2d at 537). In this context, a sentencing court has

abused its discretion if the record supports only the opposite conclusion. Valencia, 2 Wn. App. 2d

at 126. If the record adequately supports either conclusion, the matter is within the sentencing

court’s discretion. Valencia, 2 Wn. App. 2d at 126. A sentencing court also abuses its discretion

if it applies the wrong legal standard. Valencia, 2 Wn. App. 2d at 126.

       The trial court’s failure to properly treat crimes as the same criminal conduct is harmless

if the defendant’s offender score already exceeds 9. State v. Bobenhouse, 166 Wn.2d 881, 896-

97, 214 P.3d 907 (2009).

               2.     Prior Convictions

       With respect to his prior convictions, Smith points to two of his prior judgment and

sentences as evidence that the trial court should have considered some of his prior convictions to

be the same criminal conduct. One judgment and sentence, for two theft convictions, provides




                                               17
50397-2-II


date ranges for each conviction that overlap. A second judgment and sentence appears to conclude

that six convictions for second degree theft should be counted as only two offenses.9

       The record does not show that the trial court here conducted any same criminal conduct

analysis. Because RCW 9.94A.525(5)(a)(i) makes a same criminal conduct analysis mandatory,

the trial court erred in failing to conduct that analysis. However, even if the trial court had counted

all of the prior offenses Smith identifies as the same criminal conduct, his prior convictions still

yield an offender score of 10. When counting his other current offense, Smith’s offender score

would be 11.10 He does not identify any other prior convictions that could arguably be considered

the same criminal conduct. Therefore, because under Smith’s argument his offender score would

exceed 9, the trial court’s failure to conduct a same criminal conduct analysis did not prejudice

him and is harmless error.11 See Bobenhouse, 166 Wn.2d at 896-97.

       Accordingly, we conclude that the trial court abused its discretion in failing to conduct a

same criminal conduct analysis for Smith’s prior convictions, but that the error was harmless.

               3.      Current Convictions

       Smith argues that his current convictions of theft in the first degree and identity theft in the

first degree constitute the same criminal conduct. We disagree. The two crimes involve different


9
  The judgment and sentence does not expressly state that it considered those convictions to be the
same criminal conduct, but Smith’s offender score at the time appears to indicate that the court
considered those convictions to be the same criminal conduct.
10
   In this scenario, the eight theft convictions would count towards Smith’s offender score as only
three points rather than eight. This change would reduce his offender score based on prior
convictions from 15 to 10.
11
   Smith argues that if the trial court miscalculated his offender score, we should remand for
resentencing under State v. Parker, 132 Wn.2d 182, 937 P.2d 575 (1997). But the court in Parker
stated only that “[w]hen the sentencing court incorrectly calculates the standard range before
imposing an exceptional sentence, remand is the remedy.” 132 Wn.2d at 189 (emphasis added).
Because Smith’s offender score is not below 9, the trial court properly calculated his standard
range sentence, and remand is unnecessary.


                                                  18
50397-2-II


criminal intents. RCW 9.94A.589(1)(a). In addition, the legislature included anti-merger language

in the identity theft statute. RCW 9.35.020(6).

       We review a defendant’s criminal intent objectively. State v. Polk, 187 Wn. App. 380,

396, 348 P.3d 1255 (2015). The analysis involves determining to what extent criminal intent,

viewed objectively, changed from one crime to the next. State v. Tili, 139 Wn.2d 107, 123, 985

P.2d 365 (1999). Under State v. Chenoweth, 185 Wn.2d 218, 223, 370 P.3d 6 (2016), we look to

the relevant statutory text to identify objective criminal intent.

       In Chenoweth, the defendant had been convicted of six counts each of child rape and incest,

with each pair of charges based on the same physical act. 185 Wn.2d at 220. Citing the applicable

statutes for child rape and incest, the court stated that “objectively viewed, under the statutes, the

two crimes involve separate intent. The intent to have sex with someone related to you differs

from the intent to have sex with a child.” Chenoweth, 185 Wn.2d at 223. As additional support,

the court noted that the legislature had expressly intended to punish incest and rape as separate

offenses. Chenoweth, 185 Wn.2d at 224. “[W]here legislative intent is clearly indicated, that

intent controls the offender score.” Chenoweth, 185 Wn.2d at 224.

       Here, applying the statutory analysis from Chenoweth, Smith’s theft and identity theft

convictions did not have the same objective criminal intent based on differences in the statutory

intent for each crime. The applicable definition of theft, under RCW 9A.56.020(1)(a), is

       [t]o wrongfully obtain or exert unauthorized control over the property or services
       of another or the value thereof, with intent to deprive him or her of such property
       or services.

The identity theft statute, RCW 9.35.020(1), states that

       [n]o person may knowingly obtain, possess, use, or transfer a means of
       identification or financial information of another person, living or dead, with the
       intent to commit, or to aid or abet, any crime.



                                                  19
50397-2-II


        The intent to commit theft is to exert unauthorized control over another person’s property

in the present. By contrast, the intent involved in committing identity theft is an intent to acquire

identification or financial information of another person for use in the future. The identity theft

statute references this difference, and distinguishes acquiring identification or financial

information from whatever future crime the defendant will use the identification or financial

information to accomplish.

        Also as noted in Chenoweth, the legislature’s intent that two crimes be punished separately

controls. 185 Wn.2d at 224. The legislature identified its intent, stating in the identity theft statute

that “[e]very person who, in the commission of identity theft, shall commit any other crime may

be punished therefor as well as for the identity theft, and may be prosecuted for each crime

separately.” RCW 9.35.020(6).

        Smith argues that both the theft and identity theft crimes involved the same intent of taking

money from Spaeth. But that argument ignores the fact that the intent to acquire Spaeth’s financial

information for use in the future was distinct from Smith’s intent to take Spaeth’s money in the

present.

        Further, even if the theft and identity theft convictions should have been treated as the same

criminal conduct, Smith has not shown prejudice because his offender score already exceeded 9.

See Bobenhouse, 166 Wn.2d at 897.

        We conclude that the trial court did not err in ruling that Smith’s current offenses did not

involve the same criminal conduct.




                                                  20
50397-2-II


III.   SAG

       A.      Arrest Warrant

       Smith asserts that the trial court improperly issued a warrant for his arrest. He asserts

several issues related to the warrant, including that an affidavit supporting the warrant was

inadequate, the attorney who completed the affidavit was not a neutral party, and a related police

report contained false statements.

       None of the documents Smith references is in the record on appeal. We consider only facts

contained in the record. State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011). Because the

record is insufficient, we cannot consider Smith’s claims. If Smith wants to rely on facts outside

the trial record, he must file a personal restraint petition (PRP). Grier, 171 Wn.2d at 29.

       B.      Jury Instructions

       Smith asserts that the trial court erred by failing to include an instruction on when the jury

could presume that Smith had knowledge that Sharyl had stolen the Comdata checks. Smith’s

argument appears to be that the failure to instruct the jury relieved the State of its burden of proving

each element of accomplice liability. We disagree.

       Neither the accomplice liability instruction nor any other jury instruction included a

presumption. The jury instruction on accomplice liability stated that Smith was an accomplice to

a crime if he acted “with knowledge that [listed actions] will promote or facilitate the commission

of the crime.” CP at 67. Smith does not identify how this instruction or any other would allow

the jury to presume that he had knowledge that Sharyl had stolen the Comdata checks.




                                                  21
50397-2-II


       C.       Burden Shifting

       Smith asserts that the prosecutor committed misconduct by improperly shifting the burden

of proof during her closing argument. We disagree.

       To show prosecutorial misconduct, a defendant bears the burden of proving the

prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438,

442, 258 P.3d 43 (2011). We review a prosecutor’s allegedly improper statements in the context

of her total argument, the issues in the case, the evidence raised in argument, and the jury

instructions. State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). In determining

whether misconduct occurred, we first consider whether the contested statements were improper.

Anderson, 153 Wn. App. at 427. If they were and if the defendant objected, we consider whether

there was a substantial likelihood that the improper argument affected the jury. Anderson, 153

Wn. App. 427.

       Where a defendant fails to object to alleged prosecutorial misconduct, he is deemed to have

waived any error unless he shows the “misconduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. To meet

this heightened standard, “the defendant must show that (1) ‘no curative instruction would have

obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had

a substantial likelihood of affecting the jury verdict.’” Emery, 174 Wn.2d at 761 (quoting

Thorgerson, 172 Wn.2d at 455).

       The State generally has wide latitude to make arguments and draw reasonable inferences

from the evidence. State v. Osman, 192 Wn. App. 355, 367, 366 P.3d 956 (2016). This latitude

includes commenting on the quality and quantity of the defense’s evidence. Osman, 192 Wn. App.

at 367. The mere mention that the defense’s evidence is lacking does not shift the burden of proof.



                                                22
50397-2-II


Osman, 192 Wn. App. at 367. However, the prosecutor may commit misconduct by mentioning

that the defense did not present witnesses or stating that the jury should find the defendant guilty

because the defendant failed to present evidence to support his theory. Anderson, 153 Wn. App.

at 428.

          Here, Smith points to two arguments by the prosecutor. First, while attempting to

anticipate a rebuttal argument by defense counsel that the State did not present certain testimony,

the prosecutor argued that the defense would always be able to point to the absence of some

evidence. The prosecutor argued, “If [Sharyl] testified, they can say [Sharyl] didn’t admit

anything. If she admitted something, they can argue, well, you didn’t collect the surveillance video

or you didn’t dust for fingerprints.” 3 RP (Mar. 2, 2017) at 415-16. Although the court sustained

an objection to this argument, the prosecutor’s argument did not shift any burden. Rather, the

prosecutor merely argued about the lack-of-evidence argument she anticipated from the defense.

The prosecutor did not act improperly in making it.

          Second, the prosecutor ended her argument by asking the jury to find Smith guilty and

ended her reply by stating that the evidence showed beyond a reasonable doubt that Smith was

guilty.    This argument relied on reasonable inferences from the evidence; therefore, the

prosecutor’s argument was neither improper nor shifted the burden of proof.

          Smith also asserts that the prosecutor vouched for the credibility of a witness. We do not

consider this assertion because Smith has not identified with specificity what he means. We will

not search the record to support a defendant’s SAG claim. State v. O’Connor, 155 Wn. App. 282,

293, 229 P.3d 880 (2010).




                                                 23
50397-2-II


       D.      Amendment of Information

       Smith asserts that the trial court erred in allowing the State to amend the charges against

him on the day before trial. We disagree.

       Article 1, section 22 of the Washington Constitution requires that a defendant be

adequately informed of the charges against him and protects defendants from being tried for an

offense not charged. State v. Ziegler, 138 Wn. App. 804, 808, 158 P.3d 647 (2007). Consistent

with that right, CrR 2.1(d) allows the State to liberally amend the defendant’s charging information

“at any time before verdict or finding if substantial rights of the defendant are not prejudiced” with

the trial court’s permission.

       In determining whether amendment was proper, the issue is whether the defendant’s

substantial rights have been prejudiced. A bright-line rule applies after the State rests its case in

chief. Ziegler, 138 Wn. App. at 809. At that point, amendment is allowed only for a lesser degree

of the same charge or a lesser-included offense; any other amendment is reversible error per se.

Ziegler, 138 Wn. App. at 809.

       Before the State rests, the defendant has the burden of demonstrating prejudice. Ziegler,

138 Wn. App. at 809. Particularly relevant is the timing of the amendment and the extent of any

change to the charges. See Ziegler, 138 Wn. App. at 809-10. A defendant demonstrates prejudice

through a showing of unfair surprise or that he is unable to prepare a defense. State v. James, 108

Wn.2d 483, 489, 739 P.2d 699 (1987). By contrast, prejudice is less likely when an amendment

specifies a different manner of completing the same crime originally charged or charges a lower

degree of the original charge. State v. Schaffer, 120 Wn.2d 616, 621, 845 P.2d 281 (1993).

       We review a trial court’s decision to allow the State to amend the charge for an abuse of

discretion. State v. Lamb, 175 Wn.2d 121, 130, 285 P.3d 27 (2012). A trial court abuses its



                                                 24
50397-2-II


discretion if its decision is manifestly unreasonably or is based on untenable grounds or untenable

reasons. Lamb, 175 Wn.2d at 127.

        In determining whether an amendment is prejudicial, our decision in Ziegler is instructive.

In Ziegler, the defendant was charged with multiple instances of child rape and child molestation

related to two victims. 138 Wn. App. at 806. After the victims testified but before the state rested,

the state moved to amend one count of rape related to one victim to child molestation and add two

child rape charges against the other victim. Ziegler, 138 Wn. App. at 806-07.

        We held that the first amendment was not prejudicial because “the lack of additional

discovery or a continuance did not adversely affect [the defendant’s] defense.” Ziegler, 138 Wn.

App. at 810. However, the addition of two rape charges “was not merely the amendment from one

crime to a similar charge.” Ziegler, 138 Wn. App. at 811. We concluded that the new charges

affected the defendant’s ability to prepare a defense, and that his trial strategy and plea negotiations

would likely have been different had he known of the two additional charges earlier. Ziegler, 138

Wn. App. at 811. Therefore, the additional charges violated the defendant’s right to know of and

defend against the charges. Ziegler, 138 Wn. App. at 811. We vacated the convictions on the two

improper charges. Ziegler, 138 Wn. App. at 811.

        Here, the State amended Smith’s charging information the day before trial. The initial

information charged Smith with only theft in the first degree. The amended information added

identity theft in the first degree as well as adding for both charges a major economic offense

aggravator and an accomplice mode of commission. Smith did not object or request a continuance.

        Smith has not demonstrated that the trial court abused its discretion in allowing the State’s

amendment. First, the identity theft charge involved the same factual questions as the original

theft charge. See Schaffer, 120 Wn.2d at 622 (“[T]he new theory presented in the amended



                                                  25
50397-2-II


information arose out of the same general factual circumstance.”). For both charges, the relevant

issue was whether Smith had acquired the Comdata checks using numbers provided by Sharyl.

Similarly, the aggravator and accomplice mode of commission did not require Smith to pursue any

additional investigation.

       Second, Smith’s legal theory, that the State failed to prove that the transactions were

unauthorized, was equally applicable to the original and added charges. Smith does not argue that

he was unable to present a defense for identity theft or that he would have been able to present

additional argument had he received more time to prepare. Further, he decided not to request a

continuance at the time. See State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982) (“The

fact a defendant does not request a continuance is persuasive of lack of surprise and prejudice.”).

       As a result of the same general factual and legal questions at issue in Smith’s original and

amended information, he has not demonstrated prejudice. This case is unlike the additional rape

charges in Ziegler, which were necessarily based on events that the initial information did not

anticipate, and which could have impacted the defendant’s trial strategy and plea negotiations. 138

Wn. App. at 810-11. Smith makes no similar argument here, regarding how his strategy before

trial or at trial might have changed.

       Accordingly, we conclude that the trial court did not abuse its discretion in allowing the

State to amend Smith’s charging information.

       E.      Ineffective Assistance

       Smith asserts that defense counsel provided ineffective assistance by failing to request a

continuance after the State filed the amended information. We disagree.

       We review claims for ineffective assistance of counsel de novo. To prevail on a claim of

ineffective assistance, Smith must show both (1) that defense counsel’s representation was



                                                26
50397-2-II


deficient, and (2) that the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at

32-33. Representation is deficient if, after considering all the circumstances, the performance falls

“‘below an objective standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland v.

Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Prejudice exists if

there is a reasonable probability that except for counsel’s deficient performance, the result of the

proceeding would have differed. Grier, 171 Wn.2d at 34.

       We are highly deferential in our scrutiny of defense counsel’s performance and employ a

strong presumption that defense counsel acted reasonably. Grier, 171 Wn.2d at 33.

       Here, Smith does not identify how defense counsel’s decision not to request a continuance

was deficient. Although defense counsel’s duty to provide effective assistance included an

obligation to investigate, State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015), the record does

not show that defense counsel failed to investigate Smith’s case. Even though the State added the

identity theft charge shortly before trial, that charge was intimately related to the existing theft

charge and was based on the same general facts. There is no reason to conclude that defense

counsel’s investigation of the initial theft charge was not adequate to allow him to make informed

decisions regarding the identity theft charge, to present a defense, and to not request a continuance.

In re Pers. Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004).

       Because Smith has not shown his counsel was deficient, his claim fails.

       F.      Lesser Included Offense

       Smith appears to assert that theft is a lesser included offense of identity theft, and that the

trial court erred by failing to provide an instruction for a lesser included offense. An offense

qualifies as a lesser included offense if (1) each element of the lesser offense is a necessary element




                                                  27
50397-2-II


of the charged offense and (2) the evidence supports an inference that the defendant committed the

lesser crime. State v. Sells, 166 Wn. App. 918, 926, 271 P.3d 952 (2012).

       Applying this test, the court in Sells held that identity theft in the second degree is not a

lesser included offense of theft in the third degree because the two crimes require different

elements. 166 Wn. App. at 926. Theft requires proof that the defendant wrongfully obtained

property of another with intent to deprive, RCW 9A.56.020(1)(a); identity theft requires proof that

the defendant “obtain, possess, use, or transfer” another person’s identification or financial

information. RCW 9.35.020(1). Therefore, neither crime can be a lesser included offense of the

other. The trial court in this case did not err in not giving a lesser included offense instruction.

       G.      Major Economic Offense Aggravator

       Smith asserts that there was insufficient evidence to convict him of the major economic

offense aggravator. Specifically, he asserts that the State failed to present that his crimes involved

multiple victims. We disagree.

       Article I, section 21 of the Washington Constitution guarantees criminal defendants the

right to a unanimous jury verdict. State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017).

       Here, the major economic offense aggravator stated:

               To find that this crime is a major economic offense, at least one of the
       following factors must be proved beyond a reasonable doubt:
               (1) The crime involved multiple victims or multiple incidents per victim; or
               (2) The crime involved attempted or actual monetary loss substantially
       greater than typical for the crime; or
               (3) The crime involved a high degree of sophistication or planning or
       occurred over a lengthy period of time; or
               (4) The defendant used his or her position of trust, confidence, or fiduciary
       responsibility to facilitate the commission of the crime.

CP at 81. The court instructed the jury in accord with the statute. RCW 9.94A.535(3)(d).




                                                  28
50397-2-II


        Smith asserts that the means to commit a major economic offense includes not only the

four numbered items under RCW 9.94A.535(3)(d), but also subparts within each item. Therefore,

he asserts, the State had to prove that his crime involved multiple victims and multiple incidents

per victim, and that because the State presented evidence of only one victim, Spaeth, the trial court

erred in applying the major economic offense aggravator. We disagree with Smith’s reading of

the statute.

        The plain language of RCW 9.94A.353(3)(d)(i) requires a finding beyond a reasonable

doubt that the crime involved “multiple victims or multiple incidents per victim.” Smith argues

we should replace the word “or” with an “and.” We decline to do so.

        Under the structure of RCW 9.94A.535(3)(d), the State only had to prove one of the four

enumerated means, not the subparts listed within each means. Cf. State v. Lindsey, 177 Wn. App.

233, 240-42, 311 P.3d 61 (2013). Here, the State presented evidence that the crime involved 176

transactions and the transactions involved over $250,000. The State clearly proved beyond a

reasonable doubt that the crime involved a “monetary loss substantially greater than typical for the

crime.” RCW 9.94A.535(3)(d)(ii). That proof sufficiently proved the aggravating factor.

        H.     Miscellaneous Evidentiary and Testimony Issues

        Smith asserts that several issues occurred at trial related to the admission of evidence and

witness testimony. We disagree.

               1.      Comdata Codes

        Smith asserts that the trial court erred in admitting evidence regarding the Comdata codes.

He cites ER 901(a), which addresses authentication of evidence. We disagree.

        To authenticate evidence, the proponent must provide sufficient proof to support a finding

that the evidence is what the proponent claims it to be. State v. Young, 192 Wn. App. 850, 854,



                                                 29
50397-2-II


369 P.3d 205 (2016). One method is through the testimony of a witness with knowledge. Young,

192 Wn. App. at 855.

       But Smith does not identify what evidence he believes was inadequately authenticated, and

none of the exhibits presented or admitted at trial is in the record. The only admitted evidence that

could have included the Comdata numbers was a set of photocopies of the Comdata checks, which

Ingalls addressed in her testimony. Smith did not object to admission of that evidence at the time,

and Ingalls explained that the admitted evidence was photocopies of the checks. Accordingly,

Smith failed to show that the trial court erred in admitting evidence related to the Comdata codes.

               2.      Handling of Evidence

       Smith asserts that the trial court erred by allowing the State to remove evidence from the

courtroom and by resolving evidentiary issues related to that evidence outside the jury’s presence.

He references the State’s direct examination of officer Johnny Rivera, who testified about the

investigation at Spaeth. During the State’s examination, it presented Rivera with an exhibit that

included several pages of a ledger as well as copies of the Comdata checks. Rivera stated that he

recognized the checks but had not previously seen the ledger. To clarify what portion of the exhibit

could be admitted, the State questioned Rivera outside of the jury’s presence. Smith was present

and did not object to the questioning or to the admission of the checks into evidence.

       No impropriety occurred in this exchange. The record does not show that the State

removed evidence from the courtroom. To the extent that Smith’s argument depends on evidence

outside the record, he must present supporting evidence and raise the argument in a PRP. Grier,

171 Wn.2d at 29.

       Additionally, the trial court did not err by allowing the State to question Rivera regarding

the exhibit outside the jury’s presence. Preliminary questions concerning admissibility of evidence



                                                 30
50397-2-II


are to be determined by the court under ER 104(a). Smith asserts that the jury was unable to

determine what weight to give the evidence. But the jury was present after the evidence was

admitted, and Smith had an opportunity to question Rivera about it. In addition, Smith did not

object at the time. Therefore, he cannot raise this argument for the first time on appeal. RAP

2.5(a)(3); State v. Koss, 181 Wn.2d 493, 502, 334 P.3d 1042 (2014) (noting that manifest errors

affecting a constitutional right may be raised for the first time on appeal).

               3.      Ingalls’s Testimony

       Smith asserts that testimony by Ingalls was improper because she lacked personal

knowledge to support her testimony about whether Sharyl wrote the Comdata checks and because

her testimony improperly shifted the burden of proof. We resolved this issue above and do not

readdress it. State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012).

               4.      Confrontation Clause Violation

       Smith asserts that testimony by Ingalls and testimony regarding Spaeth’s president at the

time of the theft, Robert Loidhamer, violated the Sixth Amendment’s confrontation clause. We

disagree.

       The confrontation clause provides a defendant with “the right ‘to be confronted with the

witnesses against him.’” State v. Jasper, 174 Wn.2d 96, 109, 271 P.3d 876 (2012) (quoting U.S.

CONST. amend VI). This right applies against witnesses who “‘bear testimony,’” defined as a

“‘declaration or affirmation made for the purpose of establishing or proving some fact.’” Jasper,

174 Wn.2d at 109 (internal quotation marks omitted) (quoting Crawford v. Washington, 541 U.S.

36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). Under the confrontation clause, testimonial

statements may not be introduced as evidence except where the witness is unavailable and the

defendant had a prior opportunity for cross-examination. Jasper, 174 Wn.2d at 109.



                                                 31
50397-2-II


       With respect to Ingalls, no confrontation clause violation existed because Ingalls was

available for cross-examination. With respect to Loidhamer, Smith has not identified any improper

testimonial statements by Loidhamer that were admitted, and we have found none. Therefore,

Smith’s claim fails.

       I.      Appearance of Fairness

       Smith asserts that a variety of persons involved in his trial had improper relationships and

argues that he was prejudiced as a result.12 However, Smith’s allegations of prejudice are

conclusory, and nothing in the record provides any evidence as to the relationships Smith alleges.

Accordingly, Smith’s claim fails.

       J.      Jury Selection

       Smith asserts that the trial court erred in improperly allowing the State to exercise a

peremptory challenge after the State had already accepted the jury panel. We disagree.

       Jury selection and the exercise of peremptory challenges is governed by court rule and

statute. Under CrR 6.4(e)(2), “[a]cceptance of the jury as presently constituted shall not waive

any remaining peremptory challenges to jurors subsequently called.” A similar rule in RCW

4.44.210 provides that if one party declines to exercise a peremptory challenge, “that party may

no longer peremptorily challenge any of the jurors in the group for which challenges are then

being considered and may only peremptorily challenge any jurors later added to that group.”

(Emphasis added.). Under these provisions, a party may exercise a peremptory challenge after

previously accepting a previous iteration of the jury panel. State v. Bird, 136 Wn. App. 127, 133,

148 P.3d 1058 (2006). Here, the State properly exercised its peremptory challenges as to a new



12
   Smith alleges various relationships between the trial judge, other Kitsap County judges, the
elected county prosecutor, Loidhamer, and defense counsel.


                                               32
50397-2-II


prospective juror called after the State accepted the rest of the panel. Because the State acted

properly, the court did not err.

       K.      CrR 4.7

       In a supplemental SAG, Smith argues that the State violated CrR 4.7 by not disclosing tax

forms. Because there is nothing in the record to show either that the State had the records or that

it failed to provide them to Smith’s lawyer, this assertion fails.

       We also are unable to review any vouching arguments made by Smith.

       We affirm Smith’s convictions and sentence.




                                                               Melnick, J.

We concur:




       Bjorgen, J.




       Lee, A.C.J.




                                                  33
