       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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       Becker, J. — Appellant Roy Bell Jr.'s right to confront witnesses against

him was not violated when the victim's statements to an officer, made after Bell

threatened to kill her and while he was still at large, were admitted. His right to a

public trial was not violated when the court conducted off-the-record sidebars

regarding a routine evidentiary objection and then promptly memorialized the

sidebars on the record. Other alleged errors, even if they occurred, were not

prejudicial. We affirm appellant's conviction on three felony counts of violation of

a court order and remand for correction of a clerical error in the judgment and

sentence.
No. 73062-2-1/2


                                      FACTS

       On December 20, 2013, the King County Superior Court entered a

domestic violence no-contact order prohibiting Roy Bell Jr. from contacting TG.

The order was valid for five years. Bell signed the order, acknowledging receipt.

       Five days later, on December 25, 2013, TG called 911 as she was being

assaulted by a man at her apartment. The man was not there when police

officers arrived. TG identified the man to a responding officer as Bell.

       Less than three months later, on March 15, 2014, TG again called 911

from her apartment. She told the operator there was no emergency but she

needed help getting Bell out of her apartment. Responding officers found Bell in

TG's apartment, arrested him, and took him to jail.

       Bell called TG from jail several times on March 15 and 16, 2014.

      The State charged Bell with three counts of domestic violence felony

violation of a court order. Count 1 corresponds to the December 25 incident,

count 2 to the March 15 incident, and count 3 to Bell's phone calls to TG from jail.

The State charged two separate aggravating circumstances on all three counts.

       Bell's trial occurred in October 2014. Neither Bell nor TG testified. The

State played recordings of TG's December 25 911 call and her conversations

with responding officers on that day, recordings of Bell being arrested at TG's

apartment and taken to jail on March 15, and his phone calls from jail to TG. The

State presented testimony from officers who responded to TG's 911 calls on

December 25 and March 15. Bell stipulated that he had twice been previously
No. 73062-2-1/3


convicted of violating a court order protecting TG. The jury found Bell guilty on

all three counts.


       After a second phase of the trial, the jury found the two aggravating

circumstances. The court imposed an exceptional sentence of 70 months, 10

months above the standard range sentence. Bell appeals.

                           CONFRONTATION CLAUSE

       The recording of TG's December 25 911 call captures part of the assault

as it happened, with TG saying she is bleeding and telling an unidentified male to

"back off," "leave me alone," "let go of me," and "I need to breathe." A man's

voice is heard on the call. At one point, he says, "Who is it? If it's the police, I'm

not opening up. Is it the police? No, I don't open up to police. Police, no. No

police come in here." TG tells the operator that the man left and police officers

have arrived. The call ends with TG agreeing to go speak to the officers outside.

       The officers' body microphones recorded their arrival at TG's apartment

complex. The recordings show that as they arrive, one officer sees a man he

believes is TG's assailant running down a stairwell in the building. As two

officers continue searching for the assailant, Officer Jason Tucker goes to TG's

apartment to speak with her.

       Bell objected to the admission of TG's recorded conversation to Officer

Tucker on the ground that it violated the confrontation clause. The trial court

redacted statements TG made to the officer, indicating he had assaulted her

before. The part of the recording where she identified Bell by name was not
No. 73062-2-1/4


admitted at trial. The court admitted the following portion of the recording of their

conversation:


              [Officer Tucker]: Hi, ma'am. What's going on?
              [TG]: Well, he (unintelligible). Came over for the holiday.
       He came here, was drinking and he's (unintelligible) cheating on
       me and (unintelligible).
              [Officer Tucker]: Did he beat on you, or. . .
              [TG]: Yeah, yeah. Punching, kicking, saying you're going to
       die today.

              [Officer Tucker]: Do you know where he might be headed
       right now? Does he have anywhere around here he might go?
              [TG]: He knows everybody around here.

       Officer Tucker testified to essentially the same statements from his own

recollection of his conversation with TG. A detail added by his testimony was

that TG told him the person who beat her up was her "baby's daddy."

       Bell argues that the court erred in admitting TG's statements to Officer

Tucker. Our review is de novo. State v. Mason. 160 Wn.2d 910, 922, 162 P.3d

396 (2007), cert, denied, 553 U.S. 1035 (2008).

       Under the Sixth Amendment, a criminal defendant "shall enjoy the right.. .

to be confronted with the witnesses against him." U.S. Const, amend. VI. The

confrontation clause bars the admission of testimonial statements, with certain

exceptions not relevant here. Crawford v. Washington, 541 U.S. 36, 53-54, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

       The United States Supreme Court has adopted the "primary purpose" test

to determine whether a statement is testimonial. Under this test, statements are

nontestimonial "when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation
No. 73062-2-1/5



is to enable police assistance to meet an ongoing emergency." Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

       The Washington Supreme Court has drawn from Davis four factors to

determine whether the "primary purpose" of police interrogation is to enable

assistance to meet an ongoing emergency: (1) whether a "reasonable listener"

would conclude that the speaker was facing an ongoing emergency that required

help; (2) whether the person was speaking about current events as they were

actually occurring, requiring police assistance, or describing past events; (3) the

nature of what was asked and answered; and (4) the level of formality of the

investigation. State v. Koslowski, 166 Wn.2d 409, 418-19, 209 P.3d 479 (2009).

       Because this is a domestic violence case, we focus on the threat to TG

and assess the ongoing emergency from the perspective of whether there was a

continuing threat to her. See Michigan v. Bryant, 562 U.S. 344, 363-64, 131 S.

Ct. 1143, 179 L. Ed. 2d 93 (2011). "The critical consideration is not whether the

perpetrator is or is not at the scene, but rather whether the perpetrator poses a

threat of harm, thereby contributing to an ongoing emergency." State v. Ohlson,

162Wn.2d1, 15, 168 P.3d 1273 (2007).

       Although TG's assailant was no longer assaulting her, he was at large and

likely still in the immediate vicinity, given that he had just left the apartment and

TG said he knew "everybody" in the area. His reported statement to TG that

"you're going to die today" indicated a continuing threat of harm to her. A

reasonable listener would recognize that TG was facing an ongoing emergency.

See Ohlson, 162 Wn.2d 1 at 18 (ongoing emergency because there was every
No. 73062-2-1/6


reason to believe the assailant might return again and perhaps escalate his

behavior). Cf. Davis, 547 U.S. at 819-20 (defendant was still present and officers

kept him physically separated from his wife in another room).

       TG was speaking about events as they were happening. She was still on

the 911 call when officers arrived. The officer's questions were generally

designed to assess the current situation and find the assailant. And to the extent

the conversation the officer had with TG was investigative, it was not formal.

In light of the four factors identified in Davis, the trial court correctly concluded

the primary purpose of TG's statements to the officer was to enable the officers

to meet an ongoing emergency. TG's statements were nontestimonial, and their

admission did not violate Bell's Sixth Amendment right to confrontation.

                      VOICE IDENTIFICATION TESTIMONY

       Bell moved in limine to exclude witness opinions as to his guilt and officer

testimony identifying his voice on the phone calls from jail. At trial, Detective

Nicole Freutel testified that she thought the voices on the December 25 911 call

"sounded like" TG and Bell. Bell did not object. On appeal, Bell argues that the

detective's testimony should have been excluded under ER 701 and State v.

George, 150 Wn. App. 110. 206 P.3d 697, review denied, 166Wn.2d 1037

(2009).

       One of the factors to consider in whether to admit lay opinion under ER

701 is whether it is helpful to the jury. A court must also consider the risk of

invading the province of the jury and unfairly prejudicing the defendant. George,

150 Wn. App. at 118. For example, in George the admission of an officer's
No. 73062-2-1/7



testimony as to the identity of persons in a surveillance photograph was held to

be error. There was no basis for concluding that the officer, who had observed

the defendants briefly, knew enough about what they looked like to express an

opinion that they were the robbers shown on the very poor quality surveillance

video. George, 150 Wn. App. at 119.

       Detective Freutel had interviewed TG in person, and her primary function

as a witness was to identify TG's voice on the various recordings. She had no

independent knowledge of what Bell's voice sounded like. Her basis of

knowledge to recognize his voice came from listening to the recordings. Bell

argues her testimony was prejudicial and should not have been admitted.

       December 25 call


       Bell takes particular issue with Detective Freutel's identification of his

voice on the 911 call of December 25. Bell did not object when this testimony

came in. He argues that his motions in limine preserved his right to raise the

issue on appeal. We disagree. The motions in limine did not address the issue

of testimony identifying the male voice on the 911 call. Detective Freutel's

testimony was not an opinion as to guilt.

       Bell contends that he can raise the alleged error for the first time on

appeal due to ineffective assistance of counsel and because it constitutes

manifest error affecting a constitutional right reviewable under RAP 2.5(a)(3).

Claims of ineffective assistance of counsel and manifest error both require the

defendant to demonstrate prejudice. See Strickland v. Washington, 466 U.S.
No. 73062-2-1/8


668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (ineffective assistance of counsel);

State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007) (manifest error).

       Detective Freutel's testimony was not the only evidence that Bell was the

assailant in the December 25 incident. Officer Tucker testified that TG identified

the man who beat her as her child's father. Bell later stipulated that he and TG

had a child together. Another officer saw a man running away down the stairwell

of the apartment building who loosely fit the description of Bell given by TG.

       Significantly, the jurors heard the man's voice on the 911 call and the

phone calls Bell made from jail. They could decide for themselves whether the

man's voice from the 911 call was the same. In closing argument, the State

invited jurors to compare the recordings for themselves. In light of the other

evidence presented that he was the man in the apartment on December 25, Bell

has not shown prejudice from the testimony by Detective Freutel.

       Jail calls


       Bell's motion in limine did request exclusion of officer testimony identifying

his voice on the phone calls he made from jail. The court denied the motion.

When Detective Freutel testified that she recognized Bell's voice on the phone

calls he made from jail, Bell did not renew his objection.

        Assuming Bell preserved the objection via the motion in limine, and

assuming it was error, reversal is called for only if the error resulted in prejudice

to Bell. State v. Howard, 127 Wn. App. 862, 871, 113 P.3d 511 (2005), review

denied, 156 Wn.2d 1014 (2006). We apply the rule that "'error is not prejudicial

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



                                           8
No. 73062-2-1/9


materially affected had the error not occurred.'" Howard, 127 Wn. App. at 871

(internal quotation marks omitted), quoting State v. Bourgeois, 133 Wn.2d 389,

403, 945P.2d 1120(1997).

       Bell admitted in closing argument that he talked to TG on the phone from

jail. His defense was that when he made the calls, he did not know about the no-

contact order or he believed that it had expired. Whether it was Bell's voice on

the jail calls was not a contested issue. Even without Detective Freutel's

testimony, the jury could not have seriously doubted that Bell's was the voice on

the phone. We therefore conclude that any error was harmless.

                          WASHINGTON PRIVACY ACT

       When police responded to TG's 911 call on March 15, 2014, they were

wearing body microphones that corresponded to video cameras mounted in their

patrol car. The equipment made three separate but overlapping recordings of

the officers' interactions with Bell as he was arrested, put into a police car, and

transported to jail. Bell's behavior and comments on the recordings showed him

in a poor light. The recordings were played at trial, over Bell's objection that their

admission violated the Washington privacy act, chapter RCW 9.73. Bell

contends the recordings were prejudicial because they showed him handcuffed

and restrained and behaving obnoxiously, and also because excluding them

would have eliminated one of the points of comparison that supported

identification of his voice on the 911 call on December 25.
No. 73062-2-1/10



       Information obtained in violation of RCW 9.73.030-.040 is generally

inadmissible. RCW 9.73.050. The act makes an exception for police and other

emergency personnel in certain situations. RCW 9.73.090(1).

      Two subsections of RCW 9.73.090(1) are pertinent here. Subsection (b)

governs video and sound recordings "made of arrested persons by police officers

responsible for making arrests or holding persons in custody before their first

appearance in court." RCW 9.73.090(1 )(b) (emphasis added). For a recording

to be admissible under this subsection, which our Supreme Court has referred to

as the "custodial interrogation proviso," the arrested person must be fully

informed on the recording of his constitutional rights. RCW 9.73.090(1 )(b)(iii);

Lewis v. Dep't of Licensing, 157 Wn.2d 446, 467, 139 P.3d 1078 (2006).

       Subsection (c) governs "sound recordings that correspond to video

images recorded by video cameras mounted in law enforcement vehicles." RCW

9.73.090(1 )(c). This subsection was added in 2000. The Supreme Court has

referred to it as the "traffic stop proviso." Lewis, 157 Wn.2d at 467. When a

sound recording of a person is made under subsection (c), the person must be

informed on the recording that a sound recording is being made, but there is no

requirement for advice of constitutional rights.

       Bell argues that subsection (b) applies in his case. If so, it was error to

admit the recordings of Bell because he was not informed of his constitutional

rights on the recording. The State responds that subsection (c) applies.

       It is undisputed that the recordings of Bell correspond to video images

recorded by cameras mounted in the patrol cars. Subsection (c) governs this


                                         10
No. 73062-2-1/11


specific and narrow category of recordings. But it is also undisputed that Bell

was arrested shortly after the first recording began. Because he was an

"arrested person" after that point, arguably the recording from then on falls under

the plain language of subsection (b). And even if the recordings fall under

subsection (c), Bell has an argument that the third recording contains no

statement informing Bell that he was being recorded.

       We need not resolve these issues, however, because even if the

recordings of Bell were admitted in error, the error was harmless. Admission of

evidence in violation of the Washington Privacy Act is not a constitutional

violation. State v. Cunningham. 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

Error is not prejudicial unless, within reasonable probabilities, had the error not

occurred, the outcome of the trial would have been materially affected.

Cunningham, 93 Wn.2d at 831.

       To convict Bell of felony violation of a court order on March 15, 2014, the

State had to prove that a no-contact order applicable to Bell existed on that date,

that Bell knew the order existed and knowingly violated it, and that, in relevant

part, he had twice been previously convicted for violating the provisions of a court

order. See RCW 26.50.110(1). The State's evidence decisively established

every element of the crime without the recordings.

       Even if the recordings were inadmissible, the responding officers were still

allowed to testify about what they saw and heard. The strict exclusion remedy of

State v. Fiermestad, 114 Wn.2d 828, 836, 791 P.2d 897 (1990), does not apply.

When the interactions captured on the recording are not private conversations,



                                         11
No. 73062-2-1/12


the recordings are inadmissible, but the court may admit "other evidence

acquired at the same time as the improper recordings, such as the officer's

simultaneous visual observations." Lewis, 157 Wn.2d at 472. Bell does not

argue that his interactions with the officers on March 15 were private

conversations.


       The officers testified that Bell was defiant, verbally combative, offered to

pay officers three million dollars to let him go, and urinated on himself. Since the

recordings were generally cumulative of the officers' properly admitted testimony,

Bell has not shown that the outcome of the trial was materially affected by the

unattractive light in which the recordings portrayed him.

       It is true that exclusion of the audio recordings of the arrest on March 15

would have eliminated them as one basis for comparison that allowed Detective

Freutel and the jury to identify Bell's voice on the recording of the 911 call in the

first count. But Bell's five lengthy phone calls to TG from jail on the day of his

arrest and the next day would have remained as a strong foundation for

identifying Bell's voice. We conclude the outcome of the trial would not have

been materially affected if the challenged recordings had been excluded.

                               PUBLIC TRIAL RIGHT

       The court granted a motion in limine to prevent the State's witnesses from

mentioning that Bell had warrants. During an officer's direct testimony, the State

played a recording of Bell's arrest on March 15. On the recording, an officer is

heard to say, "You're under arrest at this point. You've got a couple warrants

and you're violating an order" and later "go ahead and verify this warrant." At the


                                          12
No. 73062-2-1/13


end of the officer's direct testimony, defense counsel stated that he had a motion.

The court heard the motion at a sidebar off the record. At the end of the officer's

cross-examination, the court called for another sidebar, again conducted off the

record. Immediately after the second sidebar, the court instructed the jury to

disregard any references to whether Bell had any warrants.

       After a short recess, the court reconvened without the jury. Both sidebars

were put on the record. The court and the parties agreed that at the first sidebar

Bell moved for a mistrial and argued that the references to his warrants in the

recording violated the ruling in limine. The court denied the mistrial motion but

offered to give a limiting instruction. The court called the second sidebar to ask

Bell whether he actually wanted the court to give a limiting instruction, and Bell

said yes.

       Bell contends that the trial court violated his right to a public trial by

conducting the two sidebars off the record. An alleged violation of the right to a

public trial presents a question of law that we review de novo. State v. Smith,

181 Wn.2d 508, 513, 334 P.3d 1049 (2014). Whether the proceeding at issue

implicates the public trial right calls for the application of the "experience and

logic" test. Smith, 181 Wn.2d at 514.

       Sidebars on evidentiary objections during trial generally do not implicate

the public trial right. Smith, 181 Wn.2d at 519. The Smith court cautioned that to

avoid implicating the public trial right, sidebars must be limited in content to their

traditional subject areas, must be done only to avoid disrupting the flow of trial,




                                           13
No. 73062-2-1/14


and must be conducted either on the record or promptly memorialized on the

record. Smith, 181 Wn.2d at 516 n.10.

       The purpose of the sidebars here was to address Bell's evidentiary

objection, a traditional subject area. See Smith, 181 Wn.2d at 518. Both

sidebars were conducted to avoid disrupting the flow of the officer's testimony

and the trial as a whole. Both sidebars were promptly memorialized on the

record, so the public was not prevented from knowing what occurred. See Smith,

181 Wn.2dat518.


       Bell argues that the sidebars implicate the public trial right because he

requested a mistrial. He cites State v. Burdette, 178 Wn. App. 183, 313 P.3d

1235 (2013). In Burdette, the jury reported soon after beginning deliberations

that it was deadlocked over several issues. After consulting with counsel, the

trial court sent the jury a response asking them to continue deliberations. The

record did not reflect where any discussions about the trial court's responses

were held. Burdette, 178 Wn. App. at 189. On appeal, the defendant argued

unsuccessfully that the court violated his public trial right by not discussing its

responses to the jury communications in open court. Burdette, 178 Wn. App. at

189-90, 193.

       The Burdette court reasoned that the trial court did not consider the jury's

statement to be a genuine statement of hopeless deadlock, which would trigger

consideration of a mistrial. Burdette, 178 Wn. App. at 196. The court opined, in

dicta, that when a trial court considers declaring a mistrial on the basis that a jury

is hopelessly deadlocked, a decision that has constitutional dimensions because


                                          14
No. 73062-2-1/15


of double jeopardy implications, both prongs of the logic and experience test

indicate that the public trial right would attach. Burdette, 178 Wn. App. at 196.

       Burdette should not be understood as a blanket statement that all mistrial

motions must be considered on the record. If that were so, no routine evidentiary

objection accompanied by a motion for a mistrial could be handled in a sidebar,

thus evading the rule of Smith that an evidentiary objection is a traditional subject

area for a sidebar. The commentary in Burdette should be recognized as limited

to the context of dealing with deadlocked juries.

       The sidebars here were held to consider a routine evidentiary issue with

no constitutional dimension. They were analogous to the sidebars in Smith and

did not implicate the public trial right. We conclude Bell's right to a public trial

was not violated.


                               CUMULATIVE ERROR


       Bell moved the trial court for a mistrial based on cumulative error at least

twice, based on a number of irregularities that occurred during the trial. The trial

court denied both motions. Bell assigns error to that ruling. Our review is for

abuse of discretion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012).

       To determine the effect of a trial irregularity, the court considers (1) the

seriousness, (2) whether it was cumulative of other properly admitted evidence,

and (3) whether the irregularity could be cured by an instruction to disregard the

remark, an instruction the jury is presumed to follow. State v. Escalona, 49 Wn.

App. 251, 254-55, 742 P.2d 190 (1987).




                                           15
No. 73062-2-1/16


       First, Bell alleges prejudice from testimony that violated an order in limine

prohibiting reference to Bell's prior bad acts. Officers testified that TG's

apartment "had a lot of history at it," that Bell had a previous booking photo, and

that TG said "it had happened before." The trial court struck the first two

statements. On the March 15 recording of Bell's arrest and transport to jail, an

officer referred to warrants out for Bell and Bell said to officers, "I know I got to

deal with DOC." The trial court instructed the jury to disregard mention of any

warrants out for Bell.

       The vague references to Bell's prior arrests or convictions were

cumulative of properly admitted evidence. Bell stipulated that he had twice been

previously convicted for violating a court order protecting TG. The court either

struck, redacted, or gave a limiting instruction regarding most of the testimony.

We presume the jury followed these instructions and conclude they cured any

prejudice.

       The next irregularity concerns one of the calls Bell made to TG from jail.

He told her, "You're going to burn in hell. (Unintelligible) sitting here month after

month because of your fucking hell ass lies." The phrase "month after month"

was supposed to have been redacted from the recording played to the jury in

order to remove the implication that Bell was deemed dangerous enough to be

kept in jail for months. This was not a serious irregularity. A reasonable juror

listening to the phone calls would have realized that Bell expected to be bailed

out within a few days and was exaggerating to make TG feel guilty.




                                           16
No. 73062-2-1/17


       Last, Bell alleges error based on juror misconduct. The trial court

described the misconduct on the record. After the court read Bell's stipulation

that he had two prior convictions for violation of a court order protecting TG, juror

4 approached the bailiff in the jury room. He told the bailiff that he did not

understand the stipulation. The bailiff told him that she could not talk to him

about it. The juror asked the bailiff if the stipulation meant that Bell already

admitted he was guilty. The bailiff repeated that she could not talk to him. Juror

4 then turned to the other jurors and asked them if they thought that's what the

stipulation meant. The other jurors all stared at him, "presumably understanding

they can't talk about it." The bailiff said that they could not talk about the case.

Juror 4 said that he wanted to talk to the judge. When he saw the judge on the

bench as the jurors were leaving, he again said that he wanted to talk to the court

about the stipulation. When Bell heard the court's account of what had

happened, he moved for a mistrial.

       The court excused juror 4 from the jury. The court brought in all the other

jurors and questioned them at length. The court then denied the motion for a

mistrial, finding that there was not sufficient evidence to indicate that the jury was

tainted. The court reconsidered Bell's motion after closing arguments and again

denied it because the closing arguments made clear that Bell's stipulation was

not an admission of guilt.

       We agree with the trial court that there was insufficient evidence that the

jury was tainted. The trial court dismissed juror 4 and inquired adequately to




                                          17
No. 73062-2-1/18



ensure that the rest of the jurors had not been tainted. We find no abuse of

discretion.


       Separately, Bell argues that the cumulative effect of the errors he has

raised on appeal—the confrontation clause issue, the sidebar issue, the privacy

act issue and the voice identification issue—deprived him of a fair trial. We reject

this argument. As detailed above, we conclude as to most issues there was no

error, and if there was error, no prejudice.

                            EXCEPTIONAL SENTENCE

       The jury found that all three counts were aggravated by an ongoing

pattern of abuse. See RCW 9.94A.535(3)(h)(i) (the offense "was part of an

ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple

victims manifested by multiple incidents over a prolonged period of time"). The

jury also found that count 1, for the incident on December 25, was also

aggravated by rapid recidivism. See RCW 9.94A.535(3)(t) (jury may decide

alleged aggravating factor that the defendant "committed the current offense

shortly after being released from incarceration.")

       The jury was given the pattern instruction regarding the aggravating factor

of an ongoing pattern of abuse. The pattern instruction was recently disapproved

because it erroneously included language defining the term "prolonged period of

time" to mean "more than a few weeks." State v. Brush, 183 Wn.2d 550, 559,

353 P.3d 213 (2015). As a remedy for use of the erroneous instruction, Bell

requests that we vacate his exceptional sentence and remand for resentencing.




                                          18
No. 73062-2-1/19



       At sentencing, the trial court entered a conclusion of law that: "Each one of

these aggravating circumstances is a substantial and compelling reason,

standing alone, that is sufficient justification for the length of the exceptional

sentence imposed. In the event that an appellate court affirms at least one of the

substantial and compelling reasons, the length of the sentence should remain the

same." On the judgment and sentence, the trial court checked a box stating "the

court would impose the same sentence on the basis of any one of the

aggravating circumstances."

       An exceptional sentence may be upheld on appeal even when all but one

of the trial court's reasons for the sentence have been overturned. State v.

Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993). Remand for resentencing is

necessary only if it is not clear that the trial court would have imposed an

exceptional sentence on the basis of only the one factor upheld. Gaines, 122

Wn.2dat512.


       Bell does not challenge the aggravating circumstance of rapid recidivism.

It remains valid. Bell contends resentencing is necessary because the

exceptional sentence was imposed only on count 3, while the valid aggravator of

rapid recidivism applied only to count 1. He is mistaken. The exceptional

sentence was not particularized to count 3.

       Ordinarily, the sentences on all three counts would have been concurrent,

RCW 9.94A.589(1)(a), but a court may run such sentences consecutively when

there are grounds for an exceptional sentence. See RCW 9.94A.535. The court

sentenced Bell to the maximum term of 60 months each on counts 1 and 2, to be



                                           19
No. 73062-2-1/20


served concurrently, and 10 months on count 3, to be served consecutively.

Bell's sentence is exceptional because the sentence on count 3 was made

consecutive to the other counts, but this does not mean the exceptional sentence

was imposed only on count 3. The court could have (and stated it would have)

done the same thing even if there had been no finding of an ongoing pattern of

abuse.


         By making the sentence on count 3 consecutive, the trial court achieved a

modest increase of 10 months over the presumptive standard range sentence for

the three counts. Cf State v. Smith, 123 Wn.2d 51, 864 P.2d 1371 (1993)

(where exceptional sentence exceeded standard sentence by almost six times, it

was unclear whether trial court would have imposed the same sentence if it had

only considered the valid aggravating factors).

         Remanding for resentencing is unnecessary because the trial court made

clear that it would have imposed the same exceptional sentence on the basis of

the rapid recidivism aggravating circumstance alone.

                  DISMISSAL OF FEBRUARY 10, 2014, CHARGE

         The State initially charged Bell with a fourth count of domestic violence

felony violation of a court order, arising from an incident on February 10, 2014.

After the State rested its case-in-chief, Bell moved to dismiss this count because

the State had not presented any evidence. The State did not object, and the

court dismissed the February 10 count. Two days later, the State filed a fourth

and final amended information omitting this count.




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       Bell requests that we remand to the trial court for amendment of the

judgment and sentence to reflect the dismissal of the February 10 count or,

alternatively, entry of an order dismissing it. He does not cite authority to support

the need to amend a sentence that is neither erroneous nor illegal. We deny the

request to remand for written dismissal of the charge.

              CLERICAL ERROR IN JUDGMENT AND SENTENCE

       Both parties agree that the judgment and sentence erroneously lists count

2 as having been committed on February 10, 2014, instead of March 15, 2014,

the correct date. We remand to the trial court for correction of this clerical error.

See, e.g., CrR 7.8 (clerical mistakes in judgments may be corrected by the court

at any time): In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701-02, 708, 117

P.3d 353 (2005) (remanding to trial court for correction of statutory citation

clerical error in judgment and sentence).

       Affirmed. We remand solely for correction of the clerical error in the

judgment and sentence.




WE CONCUR:




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