 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                           DIVISION ONE
                          Respondent,
                                                           No. 81033-2-I
                 v.
                                                           UNPUBLISHED OPINION
 NATASHIA MONIQUE BRITT,

                          Appellant.


        DWYER, J. — Natashia Britt appeals from her convictions for one count of

assault of a child in the first degree, two counts of assault of a child in the second

degree, and two counts of communicating with a minor for immoral purposes.

She raises numerous contentions concerning the validity of her convictions and

the imposition of a criminal filing fee and a DNA collection fee. We affirm the

convictions, but remand to the trial court for a determination of whether Britt must

pay a DNA collection fee and to strike the criminal filing fee.

                                                 I

        Britt has three children, J.B., B.C., and D.A. Prior to 2015, the children

lived together with Britt in Des Moines. During this time, Britt whipped J.B., then

approximately 10 years old, and B.C., then approximately 8 years old, with a belt

on multiple occasions. Britt forced the children to remove their clothing before


Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81033-2-I/2


each whipping. These whippings left visible bruise marks on the childrens’

bodies that would last for days, which Britt would instruct the children to hide

from others.

       B.C.’s bruises were discovered by his school nurse, resulting in the

Children’s Administration of the Department of Social and Health Services (CPS)

removing all three children from Britt’s care. CPS placed the children with Britt’s

aunt, Linda Rogers. Rogers never physically disciplined the children, but did

observe scarring on B.C.’s body.

       Then, in 2016, the children were returned to Britt, who had moved to

Tacoma. Britt resumed her prior behavior, whipping both J.B. and B.C. with a

cable cord on multiple occasions. During one particular whipping, Britt directed

B.C. to strip naked, used packing tape to tape B.C.’s mouth shut, taped B.C.’s

hands behind his back, and taped his legs together, then whipped his naked

body with the cord. This left bruises on B.C.’s back, buttocks, and hamstring.

       During this time, Britt also beat, and in one occasion strangled, B.C. If

B.C. resisted the beatings, Britt would enlist J.B. to help restrain B.C. so that she

could beat him. These beatings sometimes left scars on the boys’ bodies.

       In addition to the physical abuse, Britt also showed the boys sexually

explicit material, including a pornographic video entitled “Two Girls, One Cup.”

       Later in 2016, CPS once again removed J.B. and B.C. from Britt’s care,

placing them with Regina and Norman Golden, Britt’s mother and stepfather, who

were already caring for Regina’s other daughter, A. However, because Regina




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No. 81033-2-I/3


Golden would not participate in a background check, CPS explained that she

would have to move out of the home.

       J.B. told Regina Golden about the beatings and whippings, and showed

her the pornographic video that Britt had showed the boys. Regina Golden then

reported the abuse to the boys’ assigned social worker, which resulted in the

Tacoma Police Department opening an investigation into the abuse allegations.

During this investigation, Detective William Muse conducted multiple forensic

interviews of both J.B. and B.C., and also interviewed Britt. During her interview

with the detective, Britt initially denied ever hitting the children, but eventually

admitted that she would “[p]op the children on their legs.” By a “pop,” Britt meant

an open-handed strike.

       The State subsequently charged Britt with one count of assault of a child

in the first degree, two counts of assault of a child in the second degree, two

counts of communicating with a minor for immoral purposes, one count of sexual

exploitation of a minor, and one count of child molestation in the first degree.

Britt informed the State that she would pursue a defense of reasonable parental

discipline. The matter was called for trial in September 2017.

       During jury selection, the following exchange occurred with juror 26:

               [Prosecutor:] Now, in cases where it’s heavy with witness
       testimony, I anticipate you’ll be told that you’ll rarely, if ever, get to
       hear testimony twice. If you’re allowed to take notes, is there anyone
       here who says, you know what, even if I take notes, I’m not going to
       be able to retain this evidence over the course of three weeks?
       Anyone here feel that? It’s okay, we just need to know that. Juror No.
       26.
               JUROR NO. 26: I’m not really good at taking notes and
       whatever I write down usually is not –
               [Prosecutor]: So what if you’re able to afterwards talk with other
       jurors and you can all compare what you recall, maybe be refreshed?


                                           3
No. 81033-2-I/4

         Would you -- do you feel that you could, with those assistances, be
         able to recall testimony that occurred maybe two, three weeks ago?
                JUROR NO. 26: I don’t think so.

Subsequently, no party challenged, for cause or through the use of a preemptory

challenge, juror 26 and she was seated on the jury.

         At trial, the State presented testimony from several witnesses, including

B.C., J.B., Detective William Muse, corrections officer Torvald Pearson, Linda

Rogers, Norman Golden, and Regina Golden’s mother, Christine Kilpatrick.

         During Rogers’ testimony, the State asked her whether she had ever hit

B.C. After Rogers answered in the negative, the State followed up by asking

whether she had ever wanted to hit B.C. Over defense objection, the trial court

permitted Rogers to again answer in the negative.

         During Officer Pearson’s testimony, the State admitted several recordings

of telephone calls made by Britt while she was in jail. On one of these calls, Britt

admitted to showing the boys a pornographic video. The State also attempted to

admit testimony explaining that the recordings played for the jury were only

excerpts of all of the recorded calls and describing the total length of all the calls.

However, defense counsel successfully objected to the admission of this

testimony. Later, the defense stipulated to informing the jurors that the

recordings presented to them were excerpts from all of the recorded telephone

calls.

         Despite numerous attempts to locate her to compel her testimony by

subpoena, Regina Golden did not testify at trial. Multiple State witnesses,

including the boys and Christine Kilpatrick, testified that Regina Golden had been

out of state for the three months leading up to and including the month of trial.


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No. 81033-2-I/5


However, the defense presented testimony from a defense investigator asserting

that the investigator had successfully delivered a subpoena to Regina Golden in

Washington only a few days before the start of trial.

       Following the presentation of evidence, the jury found Britt guilty of assault

of a child in the first degree, both counts of assault of a child in the second

degree, and both counts of communicating with a minor for an immoral purpose.

Sentences within the standard range for her offenses were imposed.

       Britt appealed to Division Two, which transferred the matter to us for

resolution. Subsequently, the trial court entered an amended judgment,

modifying the conditions of Britt’s sentence by removing several restrictions that

had previously been set forth in the original judgment.

                                           II

       Britt first contends that the trial court erred by failing to, sua sponte,

dismiss juror 26 because, she asserts, the juror’s cognitive inability disqualified

her from jury service. We disagree.

       We review a trial court’s decision regarding whether to excuse a juror for

an abuse of discretion. State v. Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72

(2005); State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). “A trial court

abuses its discretion when its decision ‘is manifestly unreasonable or based upon

untenable grounds or reasons.’” Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-

69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940

P.2d 1239 (1997)).




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No. 81033-2-I/6


       Generally, all United States citizens who are at least 18 years old, are able

to communicate in English, and reside in the county in which they are summoned

to serve, are qualified to serve as jurors in Washington. RCW 2.36.070. It is a

trial judge’s duty, however, to “excuse from further jury service any juror, who in

the opinion of the judge, 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.

       “While a trial court may have a duty to sua sponte intercede where actual

bias is evident or where the defendant is not represented by counsel, this duty

must also be balanced with the defendant’s right to be represented by competent

counsel.” State v. Phillips, 6 Wn. App. 2d 651, 667, 431 P.3d 1056 (2018),

review denied, 193 Wn.2d 1007 (2019). A trial court must therefore exercise

caution before injecting itself into the jury selection process, because the

decision to select or dismiss a juror is often “based on the trial counsel’s

experience, intuition, strategy, and discretion.” State v. Lawler, 194 Wn. App.

275, 287, 374 P.3d 278 (2016).

       Britt asserts that the trial judge should have, sua sponte, dismissed juror

26 because she manifested unfitness as a juror by reason of mental defect.

Specifically, Britt asserts that the following exchange required dismissal:

              [Prosecutor:] Now, in cases where it’s heavy with witness
       testimony, I anticipate you’ll be told that you’ll rarely, if ever, get to
       hear testimony twice. If you’re allowed to take notes, is there anyone
       here who says, you know what, even if I take notes, I’m not going to
       be able to retain this evidence over the course of three weeks?
       Anyone here feel that? It’s okay, we just need to know that. Juror No.
       26.


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No. 81033-2-I/7

                 JUROR NO. 26: I’m not really good at taking notes and
         whatever I write down usually is not –
                 [Prosecutor]: So what if you’re able to afterwards talk with other
         jurors and you can all compare what you recall, maybe be refreshed?
         Would you -- do you feel that you could, with those assistances, be
         able to recall testimony that occurred maybe two, three weeks ago?
                 JUROR NO. 26: I don’t think so.

According to Britt, during this exchange juror 26 manifested unfitness by

unequivocally stating that she would not be able to remember testimony that

occurred weeks in the past and, therefore, the trial court abused its discretion by

not dismissing her regardless of the absence of any challenge raised by either

party.

         Britt is wrong. First, juror 26 did not unequivocally state that she would be

unable to recall testimony due to a mental defect. When placed in the context of

her answers to a written juror questionnaire—in which she stated that she did not

have any physical or mental defects she thought justified excusing her from

service and in which she explained that she had graduated from high school,

attended some college, had worked for Boeing for the previous six years, and

had previously served on a jury—it is plain that juror 26 was simply stating an

honest, and typical, belief that she thought that she would have difficulty

remembering specific testimony weeks after hearing it. She plainly was not

stating unequivocally that she had a mental defect warranting dismissal from jury

service.

         Second, Britt never challenged, for cause or through a preemptory

challenge, juror 26.1 Many other jurors were challenged and dismissed, so the


         1
         The State contends that Britt therefore failed to properly preserve this claim of error for
appeal. However, under RAP 2.5(a)(3) a party may raise a “manifest error affecting a


                                                  7
No. 81033-2-I/8


silence of counsel as regarding juror 26 weighs heavily against a sua sponte

dismissal. While a trial court “may have a duty to sua sponte intercede where

actual bias is evident or where the defendant is not represented by counsel,”

here the defendant was represented by counsel who interposed numerous

challenges to potential jurors. Phillips, 6 Wn. App. 2d at 667. The trial court

could have inferred from defense counsel’s silence that Britt wanted juror 26 to

serve on the jury, and it would have been improper for the court to intervene in

the defense’s strategic decision-making.

        The trial court was not required to, sua sponte, dismiss juror 26.

                                                   III

        Britt next contends that the trial court erred by preventing defense

counsel, on cross-examination of certain State witnesses during the State’s case

in chief, from eliciting evidence that Regina Golden remained in Washington.

Britt contends that this prevented her from attacking the credibility of prosecution

witnesses who asserted that Regina Golden was not in Washington, thereby

violating her constitutional right to present a defense under the Sixth Amendment

to the United States Constitution. Britt concedes that she was later permitted to

introduce this evidence in her case in chief and to argue her theory to the jury,

but nevertheless contends that the trial court’s refusal to permit her to introduce


constitutional right” for the first time on appeal. “A constitutional error is manifest where there is
prejudice, meaning a plausible showing by the appellant that the asserted error had practical and
identifiable consequences in the trial.” State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103
(2015) “Criminal defendants have a federal and state constitutional right to a fair and impartial
jury.” Irby, 187 Wn. App. at 192 (citing Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42
L. Ed. 2d 690 (1975); State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995)). The presence of
an unqualified juror violates this right, and this error is prejudicial, requiring a new trial. See Irby,
187 Wn. App. at 193 (requiring new trial when record established that juror was actually biased,
and therefore unqualified, but was seated without challenge).


                                                    8
No. 81033-2-I/9


this evidence through cross-examination during the State’s case in chief requires

reversal. We disagree.

       “The Sixth Amendment of the United States Constitution and article I,

section 22 of the Washington Constitution guarantee a criminal defendant a

meaningful opportunity to present a defense.” State v. Giles, 196 Wn. App. 745,

756, 385 P.3d 204 (2016) (citing State v. Jones, 168 Wn.2d 713, 720, 230 P.3d

576 (2010)). This right to present a defense is not absolute. Jones, 168 Wn.2d

at 720. “Defendants have a right to present only relevant evidence, with no

constitutional right to present irrelevant evidence.” Jones, 168 Wn.2d at 720.

“[I]f relevant, the burden is on the State to show the evidence is so prejudicial as

to disrupt the fairness of the fact-finding process at trial.” State v. Darden, 145

Wn.2d 612, 622, 41 P.3d 1189 (2002). “The State’s interest in excluding

prejudicial evidence must also ‘be balanced against the defendant’s need for the

information sought,’ and relevant information can be withheld only ‘if the State’s

interest outweighs the defendant’s need.’” Jones, 168 Wn.2d at 720 (quoting

Darden, 145 Wn.2d at 622). However, in instances when a defendant seeks to

introduce relevant evidence of high probative value “it appears no state interest

can be compelling enough to preclude its introduction.” State v. Hudlow, 99

Wn.2d 1, 16, 659 P.2d 514 (1983).

       “We review the trial court’s evidentiary rulings for abuse of discretion and

defer to those rulings unless ‘no reasonable person would take the view adopted

by the trial court.’” State v. Clark, 187 Wn.2d 641, 648, 389 P.3d 462 (2017)

(internal quotation marks omitted) (quoting State v. Atsbeha, 142 Wn.2d 904,




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No. 81033-2-I/10


914, 16 P.3d 626 (2001)). “If the court excluded relevant defense evidence, we

determine as a matter of law whether the exclusion violated the constitutional

right to present a defense.” Clark, 187 Wn.2d at 648-49 (citing Jones, 168

Wn.2d at 719).

       Our Supreme Court recently considered the constitutional right to present

a defense in State v. Arndt, 194 Wn.2d 784, 453 P.3d 696 (2019). Therein, the

court considered whether limitations imposed by the trial court on the testimony

elicited from a certified arson investigator, Dale Mann, violated the defendant’s

right to present a defense. Arndt, 194 Wn.2d at 796, 812-814. In concluding that

the defendant’s right to present a defense was not violated, the court noted (1)

that the defendant’s “proffered evidence was not excluded entirely and Mann was

able to testify at length for the defense” and (2) that the defendant “was able to

advance her defense theory.” Ardnt, 194 Wn.2d at 813-14.

       “Evidence is relevant when it is both material—the fact to be proved ‘is of

consequence in the context of the other facts and the applicable substantive

law’—and probative—the evidence has a ‘tendency to prove or disprove a fact.’”

Giles, 196 Wn. App. at 757 (internal quotation marks omitted) (quoting State v.

Sargent, 40 Wn. App. 340, 348 n.3, 698 P.2d 598 (1985)). Relevant evidence is

generally admissible. Hamblin v. Castillo Garcia, 9 Wn. App. 2d 78, 87, 441 P.3d

1283 (2019) (citing Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn.

App. 702, 729, 315 P.3d (2013)). The party seeking to admit evidence bears the

burden of establishing its relevance. See Giles, 196 Wn. App. at 757 (“As with all

evidence, the proponent bears the burden of establishing the admissibility of




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No. 81033-2-I/11


‘other suspect’ evidence.”); State v. Yokel, 196 Wn. App 424, 433, 383 P.3d 619

(2016). However, relevant evidence may be excluded when “its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” ER 403. “The Rules of

Evidence favor admitting relevant evidence, so the party opposing admission

bears the burden of establishing” that the probative value of relevant evidence is

substantially outweighed by such considerations. Hamblin, 9 Wn. App. 2d at 87

n.22.

        The parties herein agree that Britt was able to introduce all of the

substantive evidence regarding Regina Golden’s whereabouts that was

necessary to support Britt’s defense theory that the State’s witnesses were not

credible because they lied about Regina Golden’s whereabouts. Just as the

defendant in Arndt was able to advance her defense theory, so was Britt able to

advance her defense theory concerning the whereabouts of Regina Golden and

to argue that theory to the jury. Thus, as in Arndt, Britt’s right to present a

defense was not violated by any of the challenged evidentiary rulings. 2




        2  We further note that Britt has no right to dictate the manner and order in which evidence
is presented at trial. ER 611(a) gives that authority to the trial court, specifically authorizing the
trial court to “exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.” Thus, the rules of evidence authorize trial courts to
control when witnesses testify and when evidence is presented. This includes the ability to limit
cross-examination when sufficient evidence of the fact at issue has already or will be placed
before the jury by other means. ROBERT H. ARONSON & MAUREEN A. HOWARD, THE LAW OF
EVIDENCE IN W ASHINGTON, § 1.06(1) n.5 (5th ed. 2017) (citing United States v. Jackson, 756 F.2d
703 (9th Cir. 1985)).


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No. 81033-2-I/12


        Furthermore, Britt fails to establish that the trial court abused its discretion

in either of the two challenged evidentiary rulings. Britt contends that the trial

court made two specific erroneous evidentiary rulings that deprived her of her

right to present a defense: (1) during the cross-examination of Detective William

Muse, the trial court upheld an objection to a question asking if Regina Golden

had informed the detective when she planned to return to Washington, (2) during

the cross-examination of Christine Kilpatrick, the trial court sustained an

objection to eliciting testimony regarding the parentage of Regina Golden’s

daughter, A.3

        As to the first ruling, when asked to explain the relevance of an out of

court statement from Regina Golden to Detective Muse regarding plans to return

to Washington, defense counsel answered and engaged in the following

exchange with the court:

                [Defense Counsel]: Bias, Your Honor.
                THE COURT: . . . I’m going to sustain as to relevance, if
        there’s some indication of bias that would be used to impeach any
        testimony or any out-of-court statements made by Ms. Golden, but
        there’s been no out-of-court statements admitted for the truth of the
        matter asserted . . . there’s nothing to impeach.
                [Defense Counsel]: Relevance, in case we manage to get
        Ms. Golden?
                THE COURT: I’m sustaining the objection as to relevance at
        this time. If you have reason to believe that she’s likely to be
        produced, we’ll re-examine the issue.
                [Defense Counsel]: Okay.




         3 Britt also contends that two additional evidentiary rulings during the cross-examination

of State’s witnesses were improper. However, the record establishes that in both instances,
following brief discussions with opposing counsel and the court, defense counsel opted to
withdraw the questions to which the State objected, stating that the desired testimony would be
obtained from other witnesses rather than fully explaining the purpose behind the questioning.
Defense counsel’s choice does not constitute an abuse of the trial court’s discretion.


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No. 81033-2-I/13


        Britt asserts that this ruling was erroneous because the bias defense

counsel sought to establish through the testimony was not bias on the part of

Regina Golden, but bias on the part of other witnesses who defense counsel

asserted were lying about Regina Golden’s whereabouts. However, the record

plainly shows that defense counsel did not provide such an explanation to the

trial court at the time. Indeed, defense counsel actually reinforced the court’s

apparent belief that the defense sought to impeach Regina Golden’s statements

by requesting that the court conclude that the testimony was relevant in case

Regina Golden testified. Because Regina Golden had not testified and no out of

court statements by Regina Golden had been admitted for the truth of the matter

asserted therein at the time of this ruling, defense counsel failed to establish the

relevance of any out of court statement by Regina Golden regarding plans for

returning to Washington.4 Therefore, the trial court’s ruling was not erroneous.

        As to the second ruling, the trial court analyzed the issue of whether the

defense could elicit testimony regarding the parentage of Regina Golden’s

daughter, A, under ER 403 and concluded that the probative value of the

evidence was substantially outweighed by the risk of confusing the issues for the

jury. In explaining why the defense sought to elicit this testimony, defense

counsel stated that

        [A] is not the daughter of Norman Golden. That is a fact that we
        are already very well aware of. The issue is that because we don’t
        believe it is necessarily—how do I want to say this—we don’t
        believe that—we believe that there’s a bias inherent in them not
        wanting to say that Ms. Golden has been here the entire time, okay,

        4The proponent of evidence bears the burden of explaining to the trial court the legal
theory under which the proponent believes the evidence is admissible. Giles, 196 Wn. App. at
759-60 n.6. Thus, any lack of clarity is the fault of the proponent.


                                               13
No. 81033-2-I/14


       and that they are intentionally trying to promulgate that. We don’t
       believe that it is logical or truthful that Ms. Golden has somehow left
       her daughter with the stepfather and has completely abandoned the
       home and is no longer parenting her own daughter simply because
       of some CPS order in regards to the other three children, and so
       we are trying to establish that Mr. Golden is not, in fact, the parent
       of [A], has no parental rights with [A], has no ability to sign any sort
       of emergency paperwork or anything else that may come about,
       and that this witness was—so we are trying to establish that link,
       and that’s what Defense was doing.

       In essence, defense counsel sought to support an inference that because

Regina Golden’s daughter was not Norman Golden’s daughter and was still in

Washington, Regina Golden was likely to still have been in Washington to take

care of her, and therefore the State witnesses that asserted that she was

elsewhere were likely lying and were therefore not credible as to their

accusations against Britt. Given this extensive inferential chain, the trial court’s

conclusion that the probative value of this evidence was substantially outweighed

by the risk of confusing the jury plainly does not rise to the level of an abuse of

discretion. See State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (noting

evidence could confuse the issues for the jury by focusing attention away from

the charged burglary); ER 403. Indeed, Britt does not actually assert that the trial

court was wrong to conclude that the complex inferential chain posed a

substantial risk of confusing the issues for the jury.

       We further note that the trial court’s conclusion is strengthened by the fact

that, prior to this ruling, the defense had informed the trial court that it was able to

present a witness that could testify to having actually met with Regina Golden in

Washington during the time the State’s witnesses asserted that she was not in

Washington. This rendered the elaborate inferential chain pertaining to the



                                          14
No. 81033-2-I/15


parentage of Regina Golden’s daughter unnecessary to enable the defense to

attack the credibility of the State’s witnesses. Britt has therefore failed to

establish that the trial court’s ruling was an abuse of discretion.

                                          IV

       Britt next asserts that her convictions for assault against B.C. should be

reversed because the trial court erroneously admitted testimony from Linda

Rogers, stating that Rogers had never wanted to hit B.C. This is so, Britt asserts,

because the evidence was not relevant to whether Britt had assaulted B.C. and

was prejudicial in that it undermined Britt’s defense that her disciplining of B.C.

was reasonable and moderate. While we agree that the evidence was not

relevant, we conclude that its admission was harmless.

       Again, “[e]vidence is relevant when it is both material—the fact to be

proved ‘is of consequence in the context of the other facts and the applicable

substantive law’—and probative—the evidence has a ‘tendency to prove or

disprove a fact.’” Giles, 196 Wn. App. at 757 (internal quotation marks omitted)

(quoting Sargent, 40 Wn. App. at 348 n.3).

       “An error in admitting evidence that does not result in prejudice to the

defendant is not grounds for reversal.” State v. Bourgeois, 133 Wn.2d 389, 403,

945 P.2d 1120 (1997) (citing Brown v. Spokane County Fire Prot. Dist. No. 1,

100 Wn.2d 188, 196, 668 P.2d 571 (1983)). Such an error is “not prejudicial

unless, within reasonable probabilities, the outcome of the trial would have been




                                          15
No. 81033-2-I/16


materially affected had the error not occurred.”5 State v. Tharp, 96 Wn.2d 591,

599, 637 P.2d 961 (1981).

       “A parent has a right to use reasonable and timely punishment to

discipline a minor child within the bounds of moderation and for the best interest

of the child. . . . For this purpose, a parent may inflict reasonable corporal

punishment.” State v. Singleton, 41 Wn. App. 721, 723, 705 P.2d 825 (1985)

(citing State v. Thorpe, 429 A.2d 785, 788 (1981)). The trier of fact may consider

the following in determining the reasonableness of punishment: “the age, size,

sex, and physical condition of both child and parent, the nature of the child’s

misconduct, the kind of marks or wounds inflicted on the child’s body, the nature

of the instrument used for punishment, etc.” Singleton, 41 Wn. App. at 723-24

(citing Harbaugh v. Commonwealth, 209 Va. 695, 167 S.E.2d 329, 332 (1969)).

The force used to discipline a child must be “reasonable and moderate as

objectively determined by a jury.” Singleton, 41 Wn. App. at 724 (emphasis

added).

       Here, Britt contends that the admission of a statement by Rogers that she

never wanted to hit B.C. was not relevant to determining whether Britt assaulted

or reasonably physically disciplined B.C. Britt further asserts that the admission

of this evidence was highly prejudicial because it set up the jury to compare

Rogers’ and Britt’s treatment of the children to undermine a reasonable discipline

defense. While Rogers’ desire, or lack thereof, to hit B.C. is plainly not relevant


         5 “Because the error here resulted from violation of an evidentiary rule, not a

constitutional mandate, we do not apply the more stringent ‘harmless error beyond a reasonable
doubt’ standard.” Bourgeois, 133 Wn.2d at 403 (citing State v. Cunningham, 93 Wn.2d 823, 831,
613 P.2d 1139 (1980)).


                                             16
No. 81033-2-I/17


to determining whether Britt ever struck B.C. or whether the force Britt used to so

strike B.C. was objectively reasonable, it is equally plain that the admission of

this evidence did not prejudice Britt’s defense of reasonable discipline. Whether

Rogers’ believed physical force was desirable, let alone reasonable or

unreasonable, is irrelevant because the defense of reasonable discipline involves

the application of an objective standard. The jury instruction for Britt’s defense

properly informed the jury that it was required to “determine whether the force

used, when viewed objectively, was reasonable and moderate.” The jury is

presumed to have followed this instruction. See Spivey v. City of Bellevue, 187

Wn.2d 716, 389 P.3d 504 (2017). Because Britt does not contend that the jury

failed to follow its instructions, we conclude that the jury properly considered

Britt’s defense of reasonable parental discipline using the proper objective

standard.6 Thus, any error in admitting Rogers’ irrelevant testimony that she

never desired to hit B.C. was harmless.

                                                 V

        Britt next contends that her counsel at trial provided constitutionally

ineffective assistance and that this merits reversal. This is so, Britt asserts,

because defense counsel did not object to the admission of multiple inadmissible

statements by B.C. at trial. In response, the State asserts that Britt cannot

establish ineffective assistance because defense counsel had sound strategic




         6 Although not determinative, we further note that Britt does not contend that the State

argued that the jury’s determination should be influenced by Rogers’ statement that she never
wanted to hit B.C. Indeed, it appears from the record that other than during Rogers’ testimony,
the fact that she never wanted to hit B.C. was never mentioned by anyone during the trial.


                                                17
No. 81033-2-I/18


reasons to permit the admission of B.C.’s statements and relied upon them to

support Britt’s defense theory. The State has the better argument.

       “The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the right to effective

assistance of counsel.” State v. Anderson, 9 Wn. App. 2d 430, 454, 447 P.3d

176 (2019) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984)). A defendant seeking to establish ineffective assistance

must show that (1) counsel provided representation so deficient that it fell below

an objective standard of reasonableness and (2) the deficient performance

prejudiced her. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).

       “To prevail on an ineffective assistance claim, a defendant alleging

ineffective assistance must overcome ‘a strong presumption that counsel’s

performance was reasonable.’ Accordingly, the defendant bears the burden of

establishing deficient performance.” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d

1260 (2011) (citation omitted) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215

P.3d 177 (2009); citing State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995)). “When counsel’s conduct can be characterized as legitimate trial

strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863. “The

relevant question is not whether counsel’s choices were strategic, but whether

they were reasonable.” See Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct.

1029, 145 L. Ed. 2d 985 (2000) (concluding that the failure to discuss the

possibility of an appeal with a client is usually unreasonable). To prevail on an

ineffective assistance claim, a defendant who successfully establishes deficient




                                        18
No. 81033-2-I/19


performance must also establish that “there is a reasonable probability that, but

for counsel’s deficient performance, the outcome of the proceedings would have

been different.” Kyllo, 166 Wn.2d at 862.

       Britt contends that her counsel provided ineffective assistance because he

did not protest the admission of several out of court statements made by B.C.

during forensic interviews that pertained to the communication with a minor for

immoral purposes charge. According to Britt, such statements were inadmissible

hearsay and were prejudicial. In response, the State concedes that defense

counsel could have objected to the admission of these out of court statements,

but asserts that it was a reasonable strategic choice to not object. This is so, the

State asserts, because (1) the defense relied on a theory that compared B.C.’s

out of court statements regarding the communication with a minor for immoral

purposes misdemeanor charges with his live testimony to attack B.C.’s credibility,

and (2) the jury had already heard Britt admit on one of her recorded jail calls that

she had shown a pornographic video to both J.B. and B.C. This, the State

further avers, was a reasonable strategic choice because it allowed the defense

to question B.C.’s credibility as to all the testimony he provided without suffering

any real harm to Britt because the recorded telephone call admission already

supported the communication with a minor for immoral purposes charges. The

record supports the State’s argument.

       In closing argument, defense counsel repeatedly argued that the jury

should closely compare B.C.’s out of court statements from his forensic

interviews with his live testimony because his statements were inconsistent.




                                         19
No. 81033-2-I/20


Plainly, the defense strategy involved persuading the jury that B.C.’s testimony

was not credible. Furthermore, such a strategy was eminently reasonable, as it

allowed the defense to argue that the jury could infer, having observed B.C.’s

inconsistent statements regarding the misdemeanor charges, that B.C.’s

testimony as to the more serious felony assault charges was also not credible.

Furthermore, the benefit of challenging B.C.’s credibility on these felony charges

significantly outweighed any risk to Britt from the admission of B.C.’s out of court

statements regarding the communication with a minor for immoral purposes

misdemeanor charges because those charges were already strongly supported

by the presentation of Britt’s recorded phone call admitting that she had shown

J.B. and B.C. a pornographic video. Britt has therefore failed to establish that her

counsel’s performance was deficient. Thus, her claim fails.

                                           VI

       Britt next contends that the prosecutor committed misconduct by seeking

to elicit testimony explaining that the jury would only be presented with excerpted

portions of all of Britt’s recorded jail telephone calls. This is so, Britt asserts,

because eliciting such testimony would enable the jury to speculate that the

defense was intentionally hiding evidence. In response, the State asserts that

there was no misconduct because (1) when Britt objected to the State’s attempt

to solicit such testimony the trial court sustained the objection, thus granting the

defense the relief it requested, and (2) defense counsel stipulated to informing

the jury that they would hear only excerpts of the recorded jail calls. The State

has the better argument.




                                           20
No. 81033-2-I/21


        The record establishes that Britt received the remedy she requested at

trial regarding the State’s allegedly improper attempt to elicit testimony that the

jury was being presented with excerpts of recorded jail telephone calls—the trial

court sustained Britt’s objection to the admission of such testimony. When a

party objects and receives the remedy it requests, it cannot complain that more

was required on appeal as “[t]he law presumes that th[is] remed[y] [was]

effective.” Giles, 196 Wn. App. at 769 (citing State v. Warren, 165 Wn.2d 17, 28,

195 P.3d 940 (2008)). Britt cannot now complain of an error for which she

received the remedy she requested at trial.

        Furthermore, the record establishes that defense counsel stipulated to

informing the jury that they were hearing excerpts of all the recorded jail

telephone calls.7 It is plainly not prosecutorial misconduct to inform the jury of

information which defense counsel has stipulated may be presented to the jury.

Britt has therefore failed to establish that the prosecutor committed misconduct.

                                                VII

        Britt next contends that we must remand this matter to the trial court in

order to correct several deficiencies in the judgment and sentence relating to the

conditions of her sentence. In response, the State asserts that this contention is

moot because the trial court has already issued an amended judgment

containing all of the modifications requested herein by Britt.




        7 Additionally, there was never any evidence presented to suggest, nor was any

argument ever made, that the jury was only permitted to hear excerpts of the recorded jail
telephone calls because the defense blocked the admission of all of those calls. In fact, the
record shows just the opposite: the State elicited testimony herein that the prosecutor’s office had
requested that the excerpts of the calls be made.


                                                21
No. 81033-2-I/22


        An issue is moot “if a court can no longer provide effective relief.” Orwick

v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). Generally, we will

not review a moot question. Global Neighborhood v. Respect Wash., 7 Wn. App.

2d 354, 375, 434 P.3d 1024 (citing Citizens for Financially Responsible Gov’t v.

City of Spokane, 99 Wn.2d 339, 350, 662 P.2d 845 (1983)), review denied, 193

Wn.2d 1019; cert. denied, 140 S. Ct. 638, 205 L. Ed. 2d 389 (2019).

        Britt does not dispute that the trial court entered an amended judgment

correcting the errors she asserts require reversal, but nevertheless asserts that

we must still reverse because the Department of Corrections will disregard the

amended judgment. Because this entirely speculative assertion—about an entity

that is not even a party to this case—is unsupported by the record, we agree with

the State that Britt’s contentions regarding the conditions of her sentence set

forth in the original judgment order are moot and decline to consider them.8

                                                VIII

        Finally, Britt contends that we must also remand this matter to the trial

court to strike a $100 DNA collection fee and a $200 criminal filing fee imposed

as part of Britt’s sentence. The State concedes that the $200 criminal filing fee




         8 Britt also contends that remand is required because the trial court issued the amended

judgment after Britt filed her appeal but without first obtaining permission from this court pursuant
to RAP 7.2. RAP 7.2(e)(2) states that if an order entered by the trial court “will change a decision
then being reviewed by the appellate court, the permission of the appellate court must be
obtained prior to the formal entry of the trial court decision. A party should seek the required
permission by motion.” The State concedes that this court never granted permission to the trial
court to enter an amended judgment, but asserts that we should treat the amended judgment as if
such permission had been granted for the sake of judicial economy. Because it would be an
unnecessary waste of judicial resources to disregard the amended judgment—which both parties
agree corrects the challenged deficiencies of the original judgment—and remand this case for
entry of an identical order, we treat the amended judgment herein as if it had been entered in
compliance with RAP 7.2.


                                                22
No. 81033-2-I/23


must be stricken, and we agree. However, the State asserts that the trial court

properly imposed the $100 DNA collection fee. We disagree.

       “RCW 43.43.7541 requires the collection of a DNA sample from every

adult or juvenile convicted of a felony.” State v. Houck, 9 Wn. App. 2d 636, 651,

446 P.3d 646 (2019), review denied, 194 Wn.2d 1024 (2020). “A DNA collection

fee is mandatory ‘unless the state has previously collected the offender’s DNA as

a result of a prior conviction.’” Houck, 9 Wn. App. 2d at 651 (quoting RCW

43.43.7541). If a defendant has a prior felony conviction, “the State must show

that the defendant’s DNA has not previously been collected.” Houck, 9 Wn. App.

at 651 n.4. If the record does not establish whether the State has previously

collected a DNA sample from a defendant with a prior felony conviction but the

DNA collection fee was imposed, the proper remedy is remand to determine

whether such collection has occurred and for the trial court to strike the

imposition of the collection fee if the State cannot demonstrate that the

defendant’s DNA has not previously been collected. See Houck, 9 Wn. App. 2d

at 651 (“The trial court, on remand, shall strike the DNA collection fee unless the

State demonstrates that Houck’s DNA has not been collected.”).

       Britt has a prior felony conviction. The record does not show that the

State established that it had not previously collected Britt’s DNA. Thus, we

remand to the trial court to determine whether the State has previously collected

a DNA sample from Britt, to strike the DNA collection fee unless the State

demonstrates that Britt’s DNA was not previously collected, and to strike the

$200 criminal filing fee.




                                         23
No. 81033-2-I/24


      Affirmed in part, reversed in part, and remanded.




WE CONCUR:




                                      24
