 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                    DIVISION ONE
                          Respondent,
                                                    No. 76974-0-I
                    V.
                                                    UNPUBLISHED OPINION
 SHOMARI MASH INDA JACKSON,

                         Appellant.                 FILED: June 10, 2019



       DWYER, J.   —     Shomari Jackson appeals from the judgment entered on a

jury’s verdict finding him guilty of unlawful possession of a firearm in the first

degree. On appeal, he contends that evidence of the firearm should have been

suppressed and his statement disclaiming ownership thereof should have been

admitted. These contentions lack merit. However, he properly challenges the

trial court’s imposition of a DNA (deoxyribonucleic acid) collection fee at

sentencing. We affirm the conviction but remand this matter to the sentencing

court regarding the DNA fee.



       Just after 1:00 a.m. on December 5, 2016, Officer Jesse Thomas of the

Seattle Police Department was on duty and in uniform. He observed Shomari

Jackson riding a bicycle without a helmet or proper lighting. Jackson was riding

along Dearborn Street in an area known to be a site of frequent vehicle prowls.

Officer Thomas observed as Jackson, oddly wearing a backpack across his
No. 76974-0-1/2


chest, peered into several parked vehicles in a manner suggestive of prowling.

Officer Thomas was aware that vehicle prowlers often carry tools to facilitate

entry to vehicles and frequently wear backpacks across their chests to facilitate

easy storage of tools and stolen items.

       Officer Thomas, concerned both that Jackson was committing a traffic

infraction and might be prowling vehicles, activated his vehicle’s overhead lights,

approached Jackson, and asked him to stop. When the officer did so, he

observed Jackson trying to conceal the backpack and became further concerned

that Jackson was manipulating an object inside the backpack.

      After detaining Jackson, Officer Thomas informed him that he was being

stopped for riding a bicycle without wearing a helmet. Officer Thomas did not

mention his concern about vehicle prowling. Immediately, Jackson declared

that he did not have any arrest warrants, that he had just purchased a bag of

chips, and that he was returning to the homeless encampment on Airport Way

where he was living. The officer knew this encampment to be a high crime area.

      Jackson showed Officer Thomas an identification card from the Union

Gospel Mission and gave his date of birth. The officer entered this information

into a computer and discovered that Jackson had an extensive criminal history,

including multiple felony convictions, and from an online police report learned

that Jackson had recently been arrested after threatening a woman with a

firearm. Officer Thomas was of the mistaken belief that the firearm Jackson was

alleged to have possessed had not yet been recovered.




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No. 76974~O-I/3


       Another Seattle police officer, Joseph Belfiore, heard Thomas call for

backup assistance over the police radio and arrived on the scene shortly

thereafter. Officer Thomas’s observations raised the suspicion that Jackson

could be carrying a firearm in his backpack; thus, the officer decided that he

would frisk Jackson for weapons before citing or releasing him. Officer Thomas

informed Jackson that he wanted to frisk both Jackson and the backpack for

weapons. He then directed Jackson to move to the front of his patrol car. Officer

Thomas reached for the backpack, which Jackson was still holding. When

Jackson attempted to retain the backpack, Officer Thomas took it from him and

handed it to Officer Belfiore, who placed it on the ground.

       Immediately before being patted down, Jackson admitted that he was

carrying a Taser in his pocket. Officer Thomas removed the Taser but became

concerned that Jackson might have a backup weapon on his person. A pat-

down of Jackson’s outer clothing led the officer to conclude that he did not.

       However, Officers Thomas and Belfiore both formed the belief that the

backpack was a possible safety risk. While Jackson had stated that the

backpack contained a bag of chips, Officer Thomas thought that the weight of the

backpack indicated that more than a bag of chips was inside. Although Officer

Thomas had planned to return the backpack after citing Jackson, he and Officer

Belfiore wished to check its contents for weapons. Officer Belfiore, now in

possession of the backpack, believed that patting it down could risk discharging

any firearm therein.




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No. 76974-0-1/4


        Thus, Officer Belfiore opened the front pocket of the backpack. Seeing

nothing, he then opened the partially unzipped center pocket, shined his

flashlight inside, and saw a .22 caliber revolver. Immediately, the officer said

“firearm,” prompting Jackson to state “That—that firearm is not mine.” Officer

Belfiore removed the revolver, noting that it was fully loaded with the hammer

already cocked—meaning that only a short pull on the trigger was needed to fire

the gun. This was the only item that Officer Belfiore found in the backpack.

       Jackson was arrested for unlawful possession of a firearm. He did not

present any testimony at the pretrial evidentiary hearing. Jackson’s attorney,

however, made several arguments for admitting Jackson’s statement ‘That

firearm is not mine.” All were rejected by the trial court. In a police camera video

of the incident, all audio was muted after Officer Belfiore said “firearm,” and

Jackson’s statement was deemed excluded from the evidence at trial as

inadmissible hearsay.

       I.n a ruling on Jackson’s motion to suppress the firearm, the trial court

concluded that Officer Belfiore’s visual inspection of the inside of the backpack

was necessary, in view of the risk that Jackson might be armed, to neutralize the

threat of harm to the officers and to the public. In doing so, the court rejected

Jackson’s argument that a bag must always be patted down before a visual

inspection can be warranted. Instead, the judge concluded, officers have the

authority to neutralize a threat in any manner reasonable under the totality of the

circumstances. The circumstances identified by the trial court in its ruling were

as follows:



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No. 76974-0-1/5


               First, the officer suspected the defendant of being in the
       parking lot for the purpose of car prowling.
              Second, the defendant was wearing dark, baggy clothing,
      which was consistent with what a car prowler might be expected to
      wear.
              Third, he was wearing a backpack on his front, unusual way
      to wear the backpack, which allowed it to be as what they
      described as a tactical vest to carry weapons and car prowl tools.
              Fourth, the officers knew that car prowlers typically carry
      such weapons and tools to break in to cars.
              Fifth, when Officer Thomas initially approached the
      defendant off camera, the officer testified that when he first
      approached the defendant, the defendant made furtive movements
      to place the backpack out of the officer’s view.
              The parking lot was in a high crime area.
              The defendant said he was riding his bicycle back to his
      quarters at the nearby homeless encampment, which also was a
      high crime area.
              The officer discovered that—during the database search that
      the defendant had a history of several felony convictions.
              The defendant had been arrested only weeks earlier on
      allegations that he had threatened someone with a gun at the
      homeless encampment, which was where he was going at that
      moment, he said.
              The defendant admitted that he had a Taser gun in his
      pocket, which suggested to the officers that the defendant likely
      also may have had a backup weapon on his person or in his
      backpack.
              The backpack was heavy. That was inconsistent with the
      defendant’s statement or implication that all he had in the pack was
      a bag of potato chips. It would have been imprudent for the officers
      not to investigate further to find out if that heavy object or objects
      was or were weapons. Although the defendant earlier had shown
      Officer Thomas a bag of chips in one of the compartments, that
      was by no means sufficient to dispel the officer’s reasonable
      suspicion that were no—that there were weapons in the backpack.
      The backpack had several other compartments that could hold a
      weapon, including a large central compartment.

Under these circumstances, the court concluded:

             I think it was reasonable for the officers [to] believe that
      merely patting down the backpack would not reveal a handgun or
      other weapon, especially if it were small. And I think it also was
      reasonable for the officers to be concerned that a vigorous pat



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No. 76974-0-1/6


       down of the backpack might place them and the defendant in
       serious danger because it could cause the gun to discharge.

       Thus, the court ruled not that police would always be entitled to visually

search any bag but, rather, that looking into Jackson’s backpack was a

reasonable action under the totality of the circumstances then prevailing.

       At trial, Officers Belfiore and Thomas, as well as Detective Nathan Janes,

testified. Defense counsel’s attempts to question Officer Belfiore as to whether

Jackson had admitted to knowing the firearm was in the backpack was met with

a sustained objection, with the trial court reasoning that such questioning was

intended to elicit introduction of Jackson’s hearsay statement (“That firearm is not

mine.”). Detective Janes testified that a revolver with the hammer fully drawn is

significantly easier to accidentally discharge than is a revolver with the hammer

in a forward position.

       Jackson testified, claiming that he had rushed from his tent at the

encampment to purchase groceries for his wife, who had just suffered a

miscarriage. In his haste, he asserted, he had grabbed the wrong backpack and

was returning from the store with a bag of chips when he was stopped. He also

claimed that he had not noticed the revolver inside.

      The jury returned a verdict of guilty. At sentencing, the judge deemed

Jackson eligible for a special drug offender sentencing alternative, pursuant to

RCW 9.94A.660, and waived imposition of a standard range sentence. Jackson

was sentenced to 44.75 months in prison, to be followed by 44.75 months of

community custody. The court imposed a $100 DNA collection fee. Jackson

now appeals.


                                         6
 No. 76974-0-1/7




            Jackson first contends that the trial court erred by denying his motion to

suppress evidence of the firearm as the product of an unlawful search. This is

so, he avers, because Officers Thomas and Belfiore did not have the reasonable

suspicion necessary to justify opening and visually searching inside the

backpack. He further asserts that the police must pat down an item before a

visual search of that item can be warranted. We disagree. The officers had a

reasonable concern for their safety. There is no requirement that the officers

always pat down a backpack as a predicate for ever being allowed to look into it.

        Warrantless searches are per se unreasonable under the Fourth

Amendment of the United States Constitution and article I, section 7 of the

Washington constitution. The State bears the burden of showing that a

warrantless search falls within an exception to the warrant requirement.1

State v.     Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015). One such exception
is an investigative detention, or Terry stop, pursuant to which an officer may frisk

a suspect for weapons if (1) the initial stop is lawful, (2) a reasonable safety

concern exists to justify the frisk, and (3) the scope of the frisk is limited to

protective purposes. Terryv. Ohio, 392 U.S. 1,21-24,88 S. Ct. 1868,20 L. Ed.

2d 889 (1968); State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). A



        1  In reviewing the denial of a motion to suppress, we determine whether the trial court’s
findings of fact are supported by substantial evidence. State v. Garvin, 166 Wn.2d 242, 249, 207
P.3d 1266 (2009). Evidence is substantial when it is sufficient to persuade a fair-minded, rational
person of the truth of the finding. Davis v. Microsoft Corp., 149 Wn.2d 521,531,70 P.3d 126
(2003). Conclusions of law from an order pertaining to the suppression of evidence are reviewed
de novo. State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002).



                                                 7
No. 76974-0-1/8


reasonable safety concern exists when an officer can point to “‘specific and

articulable facts” that create an objectively reasonable belief that a suspect is

“armed and presently dangerous.” Collins, 121 Wn.2d at 173 (quoting Terry,

392 U.S. at 21-24).

       While a Terry search typically involves a pat-down of a suspect’s outer

clothing,

               [a] protective frisk may extend beyond a person to his or her
       area of immediate control “if there is reasonable suspicion that the
       suspect is dangerous and may gain access to a weapon.” The
       same interests that justify a limited intrusion for a Terry stop allow
       an intrusion on a person’s possessory interests in property in some
       circumstances. An officer is not restricted to frisking only a
       suspect’s outer clothing, but may pat down articles of clothing not
       worn by, but closely connected to a suspect, where the officer
       reasonably believed a weapon was present therein.

State v. Laskowski, 88 Wn. App. 858, 861, 950 P.2d 950 (1997) (footnotes omitted)

(quoting State v. McIntosh, 42 Wn. App. 579, 582, 712 P.2d 323 (1986)).

       We have previously discussed when an officer may, in the context of a

Terry stop, search items that are not worn by a suspect. See State v. Franklin,

41 Wn. App. 409, 414, 704 P.2d 666 (1985). In that case, an officer acting on a

tip confronted Franklin, who he believed to be armed. Franklin, 41 Wn. App. at

411. After a pat-down search, Franklin told the officer that he had a gun in his

rucksack. The officer handcuffed Franklin and searched the rucksack, finding a

starter pistol inside. Franklin, 41 Wn. App. at 411.

       On appeal, Franklin argued that the search of the rucksack was an

impermissible extension of a limited protective pat-down search. Franklin, 41

Wn. App. at 414. In holding otherwise, we noted that



                                         8
No. 76974-0-119


      there is some judicial disagreement as to when an officer may pat
      down or search bags or containers belonging to the suspect.

              In general, courts considering this issue appear to take one
      of three approaches. Some courts have disallowed searches of
      containers or bags when they are out of the control and/or reach of
     the suspect. State v. Landrv, 393 So.2d 713, 714 (La. 1981); State
     v. Jenkins, 62 Hawaii 660, 619 P.2d 108 (1980). On the other
      hand, some courts have allowed searches of bags or containers out
     of the suspect’s reach and control because “at some point [the
     officers] would be compelled to return the [container or bag] to [the
     suspect] and thus place themselves in the danger they sought to
     avoid.” United States v. McClinnhan, 660 F.2d 500, 504 (D.C. Cir.
      1981); United States v. Mason, 450 A.2d 464, 467 (D.C. 1982);
     Peoplev. Belk, 100 A.D.2d 908, 474 N.Y.S.2d 564, 565-66 (1984).
     A third approach allows searches of bags and containers only if
     they are within the detainee’s “conceivable grasp.” State v. Ortiz,
     683 P.2d 822, 828 (Hawaii 1984). The problem with adopting any
     of these approaches is that none of them will be suitable in all
     circumstances. Thus, we decline to specifically adopt or endorse
     any one of these alternatives. However, where circumstances are
     such that the officer not only suspects that the detainee/suspect
     has a weapon, but is actually told by the suspect that, in fact, there
     is a weapon concealed in his bag or container, then the
     McClinnhan rationale seems particularly appropriate because the
     officer knows that handing the container back to the suspect
     unexamined will expose him to some risk. Even if such suspect is
     handcuffed, as Franklin was, it is possible that the detention will
     produce no evidence of criminal activity, and the detainee/suspect
     will have to be released and allowed to regain access to his
     container and weapon.

              Appellant argues, however, that the constitutionally
     preferable course of action would be to seize the rucksack and then
     attempt to obtain a search warrant for its inspection. In responding
     to this argument, we must first point out that judicial review of swift
     decisions made by officers in the field should not come down to
     splitting constitutional hairs over alternative courses of action.
     Rather, the focus should always be on the reasonableness of the
     action actually taken. In any event, it appears to us that an outright
     warrantless seizure of the bag would, in these circumstances,
     constitute a greater intrusion than a limited search conducted
     strictly for the purpose of neutralizing a situation posing potential
     danger to the officer. Thus, given the close quarters and other
     circumstances surrounding Navarette’s investigation of Franklin, we



                                        9
No. 76974-0-1110


       hold that it was reasonable for Navarette to search Franklin’s
       rucksack.

Franklin, 41 Wn. App. at 414-16 (some alterations in original) (footnote omitted).

       There is no bright-line rule, as Jackson avers, that requires police to pat

down the outside of an item before visually searching within. No Washington

case announces any required procedure regarding how an officer must go about

searching a bag. Instead, we have held that officers may search an item that

they reasonably believe may contain a weapon when a suspect requests that the

item be placed in the suspect’s possession. State v. Quaring, 32 Wn. App. 728,

731, 649 P.2d 173 (1982). With regard to pat-down searches for weapons,

officer safety is the paramount concern, and the circumstances of each individual

situation will dictate that which constitutes a lawful means of searching. Franklin,

41 Wn.App. at415.

      An opinion of the United States Court of Appeals for the Sixth Circuit

summarizes the reasoning of various appellate courts on the subject. See United

States v. Walker, 615 F.3d 728, 732-33 (6th Cir. 2010). In that case, a suspect

was stopped on suspicion of bank robbery. The suspect attempted to reach into

a duffel bag but was prevented from doing so by a police officer. Walker, 615

F.3d at 730. The police officer then looked into the bag and saw a ski mask

similar to that which had been used in the robbery. The court rejected the

suspect’s argument that the officer should not have been permitted to look into

the bag, reasoning that:

            The directive to steer clear of “unreasonable” searches
      cannot be reduced to a “frisk first” or any other one-size-fits-all
      command, which is presumably why courts of appeals have


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No. 76974-0-1/1 1


       declined to adopt a “frisk first” requirement for Terry searches.
       See, ~g.., United States v. Shranklen, 315 F.3d 959, 963-64 (8th
       Cir. 2003); United States v. Thomson, 354 F.3d 1197, 1200-01
       (10th Cir. 2003); United States v. Rhind, 289 F.3d 690, 693-94
       (11th Cir. 2002); United States v. Brown, 133 F.3d 993, 998-99 (7th
       Cir. 1998). Other courts likewise have recognized that non-frisk
       search methods may be reasonable under the Fourth Amendment.
       See, ~ United States v. Landry, 903 F.2d 334, 337 (5th Cir.
       1990) (grabbing a bag and looking inside); PeolDIe v. Jackson, 79
       N.Y.2d 907, 581 N.Y.S.2d 655, 590 N.E.2d 240, 241 (1992)
       (shining a flashlight through a plastic bag). The courts’ job is to ask
       what was reasonable under the circumstances, not to poke and
       prod for lesser-included options that might not occur to even the
       most reasonable and seasoned officer in the immediacy of a
       dangerous encounter.

               If it is a loaded gun that concerns the officer, moreover, it is
       by no means clear that poking and prodding the outside of a duffel
       bag is the most sensible way to find it. No doubt, the frisking of the
       outside of a bag intrudes less on the privacy of the suspect. But at
       what cost? Who looks for a gun by aimlessly grabbing and
       manipulating the outside of a large bag that may or may not contain
       the gun—and a loaded gun at that? That, we suspect, is not what
       gun-safety programs recommend.

Walker, 615 F.3d at 732-33.

       Nevertheless, citing to State v. Glossbrener, 146 Wn.2d 670, 49 P.3d 128

(2002), Jackson argues that any reasonable concern for their safety the officers

once had to justify their search dissipated due to the passage of time in their

interactions with him. In the case cited, a police officer conducted a traffic stop of

Glossbrener’s vehicle due to an inoperative headlight. The officer noticed

Glossbrener reaching toward the passenger side of the vehicle for several

seconds before bringing his vehicle to a stop. Glossbrener, 146 Wn.2d at 673.

The officer asked Glossbrener why he had done this and, unsatisfied with his

answer, asked Glossbrener if he would consent to performing a field sobriety

test. Glossbrener, 146 Wn.2d at 673-74. Following Glossbrener’s successful


                                         11
No. 76974-0-1112


completion of the test and a pat-down search of Glossbrener that revealed no

weapon, the officer had Glossbrener wait in his car while the officer called for

backup. Glossbrener, 146 Wn.2d at 674. When the backup officer arrived, the

passenger side of Glossbrener’s vehicle was searched. The officers found illegal

drugs. Glossbrener, 146 Wn.2d at 674.

       In deciding the case, the Supreme Court first reiterated the rule from

Collins that a reasonable safety concern exists, and a protective search for

weapons is justified, when an officer can point to specific and articulable facts

which create an objectively reasonable belief that a suspect is armed and

presently dangerous. Glossbrener, 146 Wn.2d at 680. The court then adopted

two Court of Appeals holdings. First, that a “‘Terry stop and frisk may extend into

the car if there is a reasonable suspicion that the suspect is dangerous and may

gain access to a weapon in the vehicle.” Glossbrener, 146 Wn.2d at 680

(internal quotation marks omitted) (quoting State v. Terrazas, 71 Wn. App. 873,

879, 863 P.2d 75 (1993)). Second, that a “protective search for weapons must

be objectively reasonable, though based on the officer’s subjective perception of

events.” Glossbrener, 146 Wn.2d at 681 (quoting State v. Larson, 88 Wn. App.

849, 853-54, 946 P.2d 1212 (1997)).

       The Supreme Court held that the search of Glossbrener’s vehicle was

unlawful. Glossbrener, 146 Wn.2d at 684-85. While it acknowledged the

officers’ concerns for their safety stemming from Glossbrener’s furtive

movements and evasive answers when questioned, the court stressed that

nothing during the course of the interaction with him furthered the officers’ safety



                                         12
 No. 76974-0-1/13


concerns. Glossbrener, 146 Wn.2d at 682. Only after determining that

Glossbrener was not intoxicated and had no weapons on his person, and after

allowing him to sit alone in his vehicle while awaiting arrival of the backup officer,

did the officers search the passenger side of his vehicle, finding the drugs.

Glossbrener, 146 Wn.2d at 682. The objectively reasonable belief of danger, the

court held, had dissipated by then. Glossbrener, 146 Wn.2d at 681-82.

        Jackson’s contention that the Glossbrener decision mandates reversal is

unavailing. Although Jackson’s and Glossbrener’s seizures began with officers

noticing furtive movements to conceal an object, Glossbrener gave the police no

further cause for safety concerns. Jackson, however, gave them several.

        The specific facts available to the officers at the time Jackson was

searched, enumerated by the trial court, show that the officers were justified in

undertaking the search. Officer Thomas saw Jackson behaving in a manner

consistent with a vehicle prowler in a high crime area. When Officer Thomas

initiated a detention to cite Jackson for a traffic infraction, Jackson made furtive

movements to conceal the backpack that he was wearing across his chest.

        When Officer Thomas checked Jackson’s identification and ran his

personal information through his computer, he learned that Jackson had a history

of felony convictions and had been arrested for assault with a weapon not long

before.2 Jackson also stated that he was on his way to the same location where


        2   The trial court did not rely upon Officer Thomas’s mistaken belief that the firearm
involved in the previous offense had not been recovered, when it in fact had been, in evaluating
the totality of the circumstances. Nor could it have. Under Washington law, officers may not
reasonably rely on their own mistaken assessment of material facts. State v. Creed, 179 Wn.
App. 534, 542-43, 319 P.3d 80 (2014). They may, however, rely on their subjective impression of
facts that they correctly perceive. Glossbrener, 146 Wn.2d at 681.


                                              13
No. 76974-0-1/14


he had committed this prior assault. A frisk of Jackson’s outer clothing revealed

a Taser, an indicator to the officers that he could have a backup weapon.

       Jackson made an effort to retain possession of the backpack after the

second officer arrived on the scene—Officer Thomas had to grab the backpack

from him. Both officers held the backpack and noticed that the weight thereof

was inconsistent with the weight of a bag of chips. From simply holding the

backpack without feeling its surface, the officers could tell that its weight

contained an unaccounted-for, possibly dangerous, item. Thus, unlike in

Glossbrener, the passage of time and the events then occurring did not assuage

the officers’ safety concerns.

       In addition, the circumstances demonstrate that the officers had a

legitimate concern that in inspecting the backpack, a brisk pat-down search might

be futile due to the backpack’s multiple compartments, or dangerous, because of

the possibility that a pat-down could cause a gun to accidentally discharge. As

the situation bore out, this concern was well-founded. Officer Belfiore gave the

following reason for looking inside the bag rather than feeling the exterior:

       In this case I elected to open the zippers just to do a visual look into
       the bag because if it’s a firearm and I’m grabbing just the outside of
       the bag blindly, I don’t want to take the risk of accidentally grabbing
       the trigger well area and squeezing the trigger and having a round
       go off and possibly striking myself, Mr. Jackson, or somebody else
       who’s in the area.

       Considering the totality of the circumstances, the officers were justified in

conducting the search of the backpack. The trial court did not err by denying

Jackson’s motion to suppress.




                                          14
No. 76974-0-1/15


                                          Ill

       Jackson next contends that the trial court erred when it refused to admit

his statement disclaiming ownership of the seized firearm.

       A trial court’s decision to exclude evidence is reviewed for abuse of

discretion. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). An

abuse of discretion is shown only when the reviewing court is satisfied that “no

reasonable judge would have reached the same conclusion.” State v. Hopson,

113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. Fibreboard Corp.,

112 Wn.2d 636, 667, 771 P.2d 711 (1989)). If reasonable minds could disagree

as to an evidentiary ruling, no abuse of discretion has been shown. State v.

Willis, 151 Wn.2d 255, 264, 87 P.3d 1164 (2004).

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

section 22 of the Washington Constitution grant criminal defendants the right to

present testimony in one’s own defense and the right to confront and cross-

examine adverse witnesses. State v. Hudlow, 99 Wn.2d 1, 15-16, 659 P.2d 514

(1983) (citing Davis v. Alaska, 415 U.S. 308, 94S. Ct. 1105, 39 L. Ed. 2d 347

(1974)). However, these rights are not absolute, and “[t]he accused does not

have an unfettered right to offer [evidence] that is incompetent, privileged, or

otherwise inadmissible under standard rules of evidence.” State v. Lizarraga,

191 Wn. App. 530, 553, 364 P.3d 810 (2015) (alteration in original) (quoting

Taylorv. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)).

The right to put on a defense is limited by the general rules of evidence, which

include the hearsay rule.



                                         15
 No. 76974-0-1/16


       On appeal, Jackson presents several arguments as to why his statement

should have been admitted. None of these arguments withstand close scrutiny.

We will address each in turn.

                                           A

       Jackson first attacks the trial court’s stated ground for excluding his

statement. The trial court declined to admit Jackson’s statement on the basis

that it was ‘self-serving hearsay.” However, “there is no ‘self-serving hearsay’

bar that excludes an otherwise admissible statement.” State v. Pavlik, 165 Wn.

App. 645, 653, 268 P.3d 986 (2011). Instead, “self-serving seems to be a

shorthand way of saying that it was hearsay and did not fit into any of the

recognized exceptions to the hearsay rule.” Pavlik, 165 Wn. App. at 654

(internal quotation marks omitted) (quoting State v. King, 71 Wn.2d 573, 577, 429

P.2d 914 (1967)). Thus, to the extent that the trial court used this as a basis to

exclude Jackson’s remark, the court acted in error. However, because the trial

court correctly concluded that the evidence was not admissible, no appellate

relief is warranted. The statement was hearsay and Jackson presented the trial

court with no proper reason to admit it.

                                           B

      At trial, Jackson asserted that the statement was admissible under two

different exceptions to the hearsay rule: the excited utterance exception, ER

803(a)(2); and the state of mind exception, ER 803(a)(3). The trial court ruled

that the statement was not admissible pursuant to either of these exceptions.

Jackson now asserts that the statement should have been admitted under the



                                           16
 No. 76974-0-1/17


 excited utterance exception. This is so, he asserts, because the statement was

 caused by the startling event of an officer finding a firearm in Jackson’s

 backpack.3

         An “excited utterance” is “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by

the event or condition.” ER 803(a)(2). Our Supreme Court has recognized three

closely connected requirements for analyzing an excited utterance: (1) a startling

event or condition occurred, (2) the declarant made the statement while under

the stress of excitement of the startling event or condition, and (3) the statement

related to the startling event or condition. State v. Young, 160 Wn.2d 799, 806,

161 P.3d 967 (2007).

         As to the excited utterance exception, the trial court determined that:

         [T]he ground that the statement is admissible as an excited
         utterance does not resonate here with me. This was a routine
         traffic stop, there was no immediate aftermath of a startling event,
         there was no     .  no traumatic event that proceeded this. This was
                              .   .


         simply someone being stopped and somebody looking through a
         backpack.

                Additionally, the statement by the police officer was not
         directed as a question, there was no need for an answer. A
         gratuitous statement in this situation by Mr. Jackson is, I think             .   .


         not admissible in this situation.

         The State avers that the video footage of the interaction shows no hint of

surprise in Jackson’s voice or mannerisms. Jackson, for his part, contends that




         ~ Jackson does not challenge the trial court’s ruling that the state of mind exception did not
apply.


                                                  17
 No. 76974-0-1/18


these findings are all based on the assumption that Jackson already knew about

the firearm’s existence, an assumption that the court was not entitled to make.4 ~

         The ultimate holding—that the statement was not an excited utterance—

was not an abuse of discretion. The trial court evaluated video footage of, and

testimony about, the encounter and, based on Jackson’s tone and mannerisms

as well as the context of the encounter, determined that the evidence did not

support employment of the excited utterance exception. The video of the

encounter that the trial court had before it supports this; Jackson’s voice does not

exceed the volume or cadence of an individual engaged in ordinary conversation.

No excitement is apparent. The trial court’s determination was thus an eminently

reasonable one.6

                                                   C

         Jackson also makes several arguments for the first time on appeal as to

why the statement should have been admitted. His principal argument is that, by

not admitting the statement, the court disregarded ER 106. Alternatively,

Jackson argues that the statement should have been admitted as falling within



          ~ Jackson also contends that exclusion of his statement could have led the jury to believe
he made an admission by silence that the firearm was his. The State did not, however, make any
argument alluding to an admission by silence. Given that the footage only showed Officer
Belfiore stating “firearm,” and not questioning Jackson about the ownership thereof, it is
improbable that a viewer of the footage would construe silence as an admission. Indeed, no one
testified that Jackson was silent at the time. All testimony concerning his reaction was precluded.
          ~ Jackson’s statement itself supports the assertion that he knew of the firearm’s
existence. He denied ownership of the firearm, but not possession thereof.
          6 The trial court was thus justified in its decision, during the cross-examinations of Officer

Belfiore, to disallow inquiry into whether Jackson admitted knowledge that his backpack
contained a firearm. The court reasoned that this questioning would invariably lead to the
introduction of Jackson’s hearsay “not my firearm” statement, and was thus an end-run around
the ruling excluding the statement. This was a tenable reason for refusing to allow this line of
inquiry.


                                                  18
No. 76974-0-1/19


the res gestae exception to the hearsay rule. Both of these claims are without

merit, as Jackson’s counsel did not properly raise the issues at trial.

          Pursuant to the applicable rule,

          [e]rror may not be predicated upon a ruling which admits or
          excludes evidence unless a substantial right of the party is affected,
          and .   .[ijn case the ruling is one admitting evidence, a timely
                      .


          objection or motion to strike is made, stating the specific ground of
          objection, if the specific ground was not apparent from the context.

ER 103(a)(1).

          A noted scholar observes that, “[un general, the same principles apply to

an alleged error in the exclusion of evidence. That is, an appellate court will not

ordinarily consider the alleged error unless a timely and specific argument was

made, on the record, that the evidence ought to be admitted.” 5 KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE            § 103.18 (6th ed. 2016).
          This observation is supported in the case law. ‘“Error in the exclusion of

testimony by a trial court generally cannot be urged under a theory presented for

the first time on appeal.” Allen v. Asbestos Corp., 138 Wn. App. 564, 578, 157

P.3d 406 (2007) (quoting State v. Eaton, 30 Wn. App. 288, 293 n.7, 633 P.2d

921 (1981)); accord State v. Jordan, 39 Wn. App. 530, 539-40, 694 P.2d 47

(1985).

      A party cannot change theories of admissibility on appeal. State v. Mak,

105 Wn.2d 692, 718-1 9, 718 P.2d 407 (1986), overruled on other grounds by

Statev. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994); Jordan, 39Wn. App. at539-

40; State v. Platz, 33 Wn. App. 345, 351, 655 P.2d 710 (1 982).~


      ~ In addition,

                                             19
 No. 76974-0-1/20


         ER 106 allows a party to supplement portions of a writing or recorded

statement offered by an adverse party with other relevant portions as fairness

requires. It provides:

                When a writing or recorded statement or part thereof is
        introduced by a party, an adverse party may require the party at
        that time to introduce any other part, or any other writing or
        recorded statement, which ought in fairness to be considered
        contemporaneously with it.

ER 106.

        Jackson’s counsel objected to the exclusion of the statement on the basis

of “fairness,” not on the basis of ER 106. On appeal, Jackson now avers that the

essence of his “fairness” argument was that, if the court were to admit a video

recording with audio of the officers and Jackson interacting, it was necessary to

admit the complete video. Jackson contends that ER 106 was “plainly the

argument being propounded.” Br. of Appellant at 48. However, all evidentiary

objections deal in some way with “fairness.” Jackson’s objection was not

sufficiently specific to preserve his claim of error.




                    Pursuant to RAP 2.5(a)(3), to raise an error for the first time on appeal,
         the error must be “manifest” and truly of constitutional dimension. State v. WWJ
         Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999); Statev. Scott, 110 Wn.2d
         682, 688, 757 P.2d 492 (1988). The defendant must identify a constitutional
         error and show how the alleged error actually affected the defendant’s rights at
         trial. It is this showing of actual prejudice that makes the error “manifest,”
         allowing appellate review. [State v.1 McFarland, 127 Wn.2d [322], 333[, 899 P.2d
         1251 (1995)]; Scott, 110 Wn.2d at 688. If a court determines the claim raises a
         manifest constitutional error, it may still be subject to harmless error analysis.
         McFarland, 127 Wn.2d at 333; State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d
         251 (1992).
Statev. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
         Jackson does not allege a manifest error affecting a constitutional right. He was able to
present his defense at trial; his statement to the police officers at the time of his arrest was
duplicative of his testimony at trial. Thus, RAP 2.5(a) applies.



                                                20
No. 76974-0-1/21


        The absence of a specific objection herein is made worse by a simple fact.

No extant case law in Washington provides that video evidence falls within ER

106’s purview. Thus, the trial court would not be charged with understanding this

as his theory. Moreover, Jackson’s arguments about fairness were vague and

woven into a broader argument about the need for the statement to be admitted

under an exception to the hearsay rule—which the court plainly understood to be

the essence of Jackson’s proffer. Jackson’s appellate incantation of ER 106

does not entitle him to relief.

       Jackson also argues for admissibility of the statement under the rule of res

gestae. Res gestae is not one of the exceptions to the hearsay rule enumerated

in ER 803(a) but, rather, is a common law doctrine that predates the adoption of

our rules of evidence. Young, 160 Wn.2d at 816. The res gestae doctrine

“‘recognizes that, under certain circumstances, a declaration may be of such

spontaneous utterance that, metaphorically, it is an event speaking through the

person, as distinguished from a person merely narrating the details of an event,”

and the utterance was instinctive rather than the result of premeditation or

design. State v. Pugh, 167 Wn.2d 825, 837, 225 P.3d 892 (2009) (quoting Beck

v. Dye, 200 Wash. 1, 10-11, 92 P.2d 1113 (1939)). Jackson did not raise this

argument at trial, and he is not entitled to raise it for the first time on appeal.

Allen, 138 Wn. App. at 578; Jordan, 39 Wn. App. at 539-40; Eaton, 30 Wn. App.

at 293 n.7.




                                           21
No. 76974-0-1/22


                                           lv
       Jackson, anticipating a holding that he may not raise his ER 106 or res

gestae claims for the first time on appeal, alternatively claims that his trial

attorney’s omission of arguments on these grounds at trial amounted to

ineffective assistance of counsel. This argument fails, as he does not show that

his counsel’s performance was deficient.

       Counsel’s representation is given a strong presumption of effectiveness

that may only be overcome if a defendant demonstrates both deficient

performance and prejudice. McFarland, 127 Wn.2d at 334-35. The competency

of counsel is determined based upon the entire record at trial. McFarland, 127

Wn.2d at 335. If one of the two prongs of this test is not satisfied there is no

need forfurther inquiry. Statev. Lord, 117 Wn.2d 829, 883, 822 P.2d 177

(1991), abrogated on other grounds by State v. Schierman, 192 Wn.2d 577, 438

P.3d 1063 (2018).

       “When counsel’s conduct can be characterized as legitimate trial strategy

or tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215

P.3d 177 (2009). This presumption of sufficiency is rebutted by showing that

“there is no conceivable legitimate tactic explaining counsel’s performance.”

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Although

“defense counsel has a duty to investigate all reasonable lines of defense,” In re

Pers. Restraint of Davis, 152 Wn.2d 647, 744, 101 P.3d 1(2004), counsel is not

required to pursue every possible strategy regardless of likelihood of success.

McFarland, 127 Wn.2d at 334 n.2. We will not base a finding of deficient



                                          22
No. 76974-0-1/23


performance on counsel’s decision not to raise novel arguments. State v. Brown,

159 Wn. App. 366, 371, 245 P.3d 776 (2011).

       Here, Jackson’s attorney made a tactical decision to emphasize the

excited utterance and state of mind exceptions, not ER 106 or res gestae, as

grounds for admission of Jackson’s statement. There is no case law indicating

that a video falls within the purview of ER 106, let alone case law indicating that

the rule of completeness mandates inclusion of a statement of which no part has

been introduced. The decision not to raise a novel legal argument does not

constitute deficient performance. Brown, 159 Wn. App. at 371.

       Nor does a finding of deficient performance follow from the choice of

Jackson’s attorney not to raise res gestae as a ground for admission of his

statement. Res gestae statements “‘raise a reasonable presumption that they

are the spontaneous utterances of thoughts created by or springing out of the

transaction itself, and so soon thereafter as to exclude the presumption that they

are the result of premeditation or design.” Pugh, 167 Wn.2d at 838 (quoting      H~ia
v. Mullen, 115 Wash. 252, 256, 197 P. 51(1921)). It is recognized as the direct

predecessor to the “excited utterance” exception as set forth in ER 803(a)(2).

Pugh, 167 Wn.2d at 837. Choosing to argue for application of the excited

utterance rule, as opposed to its less widely employed counterpart, was a

reasonable tactical decision on the part of counsel. This is especially true given

that the video evidence does not support the notion that Jackson’s statement did

not result from premeditation. Several minutes passed between his seizure and

the discovery of the firearm. This passage of time gave Jackson ample



                                        23
No. 76974-0-1/24


opportunity to consider what he would say if contraband was discovered by the

officers. His voice and countenance do not indicate excitement stemming from

an unanticipated occurrence.

       Because we hold that no deficient performance by Jackson’s counsel has

been demonstrated, we need not reach the question of whether Jackson was

prejudiced by his counsel’s performance. Lord, 117 Wn.2d at 894.

                                          V

       Jackson’s next argument is that he is entitled to a new trial due to

cumulative error. Cumulative error is established when, taken alone, several trial

court errors do not warrant reversal of a verdict but the combined effect of the

errors denied the defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-

74, 77 P.3d 375 (2003). It is the defendant’s burden to prove an accumulation of

error of sufficient magnitude to necessitate retrial. In re Pers. Restraint of Lord,

123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994). Here, the only error

shown was the trial court’s reference to ‘self-serving hearsay” in ruling on the

admissibility of his statement regarding the gun. As discussed above, this error

was harmless, as the trial court correctly exercised its discretion in excluding the

evidence for other reasons. Jackson demonstrates no other errors. Thus, there

were no series of errors that could accumulate. His argument fails.

                                         VI

       In a supplemental brief, Jackson challenges the trial court’s imposition of a

$100 DNA collection fee. The fee should be stricken, Jackson avers, because as

a result of prior convictions he has already undergone DNA testing. A legislative



                                         24
No. 76974-0-1/25


amendment to RCW 43.43.7541, effective June 7, 2018, requires imposition of

the fee “unless the state has previously collected the offender’s DNA as a result

ofapriorconviction.” Laws of 2018, ch. 269,    § 18. Citing to State v. Ramirez,
191 Wn.2d 732, 426 P.3d 714 (2018), Jackson further notes that the amendment

applies to defendants with appeals pending at the time of enactment. The State

concedes the error and, having determined that Jackson’s DNA was indeed

previously collected, requests that we remand to strike the fee.

      We remand this matter to the trial court for a ministerial order striking the

$100 DNA fee.

      Affirmed in part, reversed in part, and remanded.




We concur:



   ______________                                         4. c. ~




                                        25
