       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                     )         No. 77512-0-1
                                             )
                    Respondent,              )         DIVISION ONE
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
GERALD LOCKET HATFIELD JR.,                  )
                                             )
                    Appellant.               )
                                             )         FILED: December 2, 2019

       HAZELRIGG-HERNANDEZ, J. —      Gerald Locket Hatfield Jr. seeks reversal of

his convictions for burglary in the first degree and robbery in the first degree,

alleging that numerous errors by the trial court individually and collectively denied

 him the right to a fair trial. Because we conclude beyond a reasonable doubt that

the errors were individually and cumulatively harmless in light of the overwhelming

evidence of his guilt, we affirm.


                                      FACTS

       On March 12, 2015, Stephen Dillenburg approached Charles Brown at the

 home of a mutual friend and asked if he would be interested in making some

 money. Dillenburg said he planned to rob some acquaintances of drugs and

 money and wanted Brown to be a lookout. Brown agreed, and the two men were

joined by Gerald Hatfield as they left the apartment. The three men got into a light-

colored sport utility vehicle (SUV), and Hatfield drove them to Lake City.
     No. 77512-0-1/2

            Kevin Boggs was renting a house in Lake City from his parents and

     subletting the basement to Adrien Diaz. Diaz sold drugs, primarily heroin, out of

     the house and paid rent to Boggs in the form of drugs. Boggs would occasionally

     act as a go-between when buyers come to the house because the basement was

     off-limits to guests.

            When the men arrived at Boggs' house, Boggs recognized Dillenburg

     because they had previously met through a mutual friend and invited the men in

     despite the late hour. They told Boggs they wanted to buy heroin and gave him

     cash. Brown testified that Boggs told them to follow him downstairs, so he and

     Hatfield went downstairs while Dillenburg stayed upstairs.        However, Boggs

     testified that he told them all to wait upstairs and went to the basement to get the

     drugs from Diaz. When Boggs heard footsteps and turned to tell them to return to
,-
     the main level, he saw Hatfield descending the stairs holding a semi-automatic

     handgun. Boggs shouted to Diaz that they were being robbed. Diaz handed

     Hatfield a small quantity of money and drugs, which was all they had on hand.

     Boggs said that Brown demanded their hidden stash of drugs and money, but they

     denied having a stash. Brown started gathering laptops and phones from the

     basement and putting them in a pillow case. Boggs testified that, at one point,

     Hatfield grabbed a pillow off the floor and covered the muzzle of the gun as if to

     silence a shot with it.

            A security camera downstairs captured a portion of the incident. The video

     showed Hatfield holding a gun, shoving Boggs three times, hitting or threatening

     to hit Boggs with the gun, and covering the muzzle of the gun with a pillow and




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No. 77512-0-1/3

pointing it at Boggs. The recording ended when Haffield appeared to notice the

camera and reached for it.

      After the men had been downstairs for a few minutes, Boggs said he heard

Brown ask Diaz what he was doing, and the two began grappling. Boggs saw a

second gun and heard a loud click. Brown ran out of the room, and Boggs saw

Diaz level a silver revolver at Hatfield. Diaz may have fired a shot; Boggs was

unsure whether he had heard one or two shots. Haffield fired a shot, which hit

Diaz in the right upper thigh.

       Brown denied getting into a scuffle with anyone and said that he was in the

downstairs bedroom when he heard gunshots and fled. Brown thought there were

two guns fired because the shots sounded like they came from two different

locations. Brown and Hatfield ran up the stairs, and the three men ran back to the

vehicle. As they drove away, Hatfield said that Diaz had shot at him, so he shot

back. The men pulled into a parking lot, divided the stolen items, and parted ways.

       Boggs called 911. Diaz was taken to the hospital and treated for the

gunshot wound to his leg and a second graze wound on his inner thigh. Diaz

admitted to emergency personnel that he used heroin and cocaine. Police found

a spent nine millimeter bullet on the floor on the basement and a hole in the

basement ceiling that appeared to be from a bullet.

       Five days later, officers returned to the house to collect the digital video

recorder(DVR)containing the video footage from the downstairs security camera.

When they arrived, Diaz gave them a spent nine millimeter shell casing. Diaz was

reluctant to turn over the DVR to police because he believed the video would also




                                        3
No. 77512-0-1/4

show him using drugs and having sex with his girlfriend. He asked the officers to

constrain their review of the video to the time frame of the incident. After they

agreed, Diaz turned over the DVR. The lead detective asked a Seattle Police

Department video technician to download a portion of the video in a one-hour time

frame surrounding the incident.

       During the course of the investigation, Boggs gave police Dillenburg's name

and later identified him as one of the robbers in a photo montage. Officers

determined that Hatfield was a person of interest in the case. When presented

with a photo montage including Hatfield's picture, Boggs also identified Hatfield as

one of the men who robbed him.

       Hatfield was apprehended in his vehicle, which was impounded and

searched. The vehicle contained a nine millimeter semi-automatic SIG Sauer

pistol and nine millimeter ammunition. Arresting officers also found nine millimeter

ammunition on Hatfield's person. When Hatfield was interviewed by detectives,

he admitted that the man in the video recording looked like him but denied that he

had committed the robbery. Hatfield was charged with burglary in the first degree,

robbery of Diaz in the first degree, robbery of Boggs in the first degree, and

unlawful possession of a firearm in the first degree.

       Hatfield made a general motion in his trial brief to exclude all out-of-court

statements under the evidentiary rule prohibiting hearsay and the confrontation

clause. In his oral argument on the motion, he specified that he was seeking

exclusion of hearsay statements from Diaz and the three other residents of the




                                         4
No. 77512-0-1/5

Lake City house, none of whom were expected to testify at trial. The court

indicated that the ruling would be reserved for trial testimony.

         Hatfield's trial brief included a separate "Motion to Exclude Hearsay by

Police Officers," which argued that "[a]ll statements by police officers regarding

why they did what they did" were irrelevant at trial. Hatfield argued orally that this

motion was "specifically geared toward law enforcement as to information they

may [have] receive[d] from . . . dispatch." He argued that the police officers'

responses to "[i]nformation they receive[d]from other witnesses that does not fall

within the hearsay exception, any information from in-car computers, from other

officers or from anybody else" were "no longer relevant" and were "hearsay, and

potentially [raised] confrontation issues as well." The remainder of the discussion

focused on the statements that the dispatcher had relayed to the responding police

officers on the night of the incident. The court denied the motion in part and

granted it in part as to statements provided by the dispatcher, noting that

"statements are not offered to prove the truth of the matter asserted, but

responding officers may testify to what was said to them to explain how and why

they acted in the manner they did," but reserved ruling as to information provided

by other witnesses.

         Hatfield also moved in his trial brief to exclude the shell casing that Diaz

had turned over to investigating officers on the grounds that chain of custody had

not been established. In the concluding paragraph of his written argument, he

wrote:

                 In this case, the shell casing is not readily identifiable as [the]
         shell casing from the alleged incident. Police did not recover the shell


                                           -5
No. 77512-0-1/6

       casing from the scene despite several officers being present. The
       casing was not turned over the same date as the alleged incident but
       four to five days later. Only Diaz can say the item is the same item
       that he recovered at the house from the date of the incident.
       Uncertainty of the shell casing's origin is a major issue. At the time
       of this writing, the Defense has not interviewed Diaz and does not
       expect him to testify at the trial. Any statements that Diaz recovered
       the shell casing from the house and that the shell casing was
       involved in the alleged charged offenses is hearsay and violates the
       Defendant's Sixth Amendment Right to confront Diaz about these
       statements.

       During oral argument on the pretrial motions, Hatfield argued that the State

could not establish the chain of custody for the shell casing before it was delivered

to law enforcement. He made a brief reference to Diaz's statements, saying "[a]ny

statements that he made with regard to the shell casing I think would not be

admissible absent his testimony." The State's response and Hatfield's rebuttal

focused entirely on the chain of custody argument. The court denied the motion

to exclude the shell casing on the grounds that any uncertainty about the origin of

the shell casing went to the weight of the evidence rather than its admissibility.

The court did not mention any hearsay or confrontation grounds in its ruling.

       At trial, Boggs identified Hatfield as the man who shot Diaz. Brown, who

had plead guilty to robbery in the first degree and burglary in the first degree, also

testified at Hatfield's trial and identified Hatfield as the gunman. The State called

Dillenburg as a witness but he took the stand and refused to testify. Diaz and the

other occupants of the house could not be located at the time of trial and so did

not testify.

       Officer Jeffrey Mitchell testified that he and Detective Michael Magan had

met with Diaz five days after the incident at the house in Lake City to collect the




                                          6
No. 77512-0-1/7

DVR. He testified that Diaz gave them a shell casing that he said he had found

after the investigating officers left. Hatfield objected on hearsay grounds. The

State responded that the statement was not offered for the truth of the matter

asserted but to explain the officers' investigative actions. The court allowed the

evidence for that limited purpose and informed the jury that Diaz's statement was

not offered for the truth of the matter.

       During Detective Magan's testimony, the State asked him if Diaz had turned

over anything other than the DVR on March 17. He responded that Diaz had given

them "a shell casing that he found in his bedroom." Hatfield did not object to this

testimony. When Detective Magan testified that officers found nine millimeter

bullets on Hatfield's person when they arrested him,the State asked whether there

was other nine millimeter ammunition associated with the investigation. Detective

Magan responded that the bullet recovered from the scene and the shell casing

that Diaz had "found in his room" were both nine millimeter ammunition. Hatfield

did not object to that testimony.

       Dijana Coric, a forensic scientist in the Washington State Patrol Crime Lab's

firearm and toolmark section, testified that she performed a forensic analysis of a

firearm and shell casing associated with this case. On direct examination, she

testified at length to her training, education, and experience; to the theory offirearm

toolmark comparison; and to the method she employed in analyzing the evidence

in this case.     She testified that she performed a side-by-side microscopic

comparison of the recovered shell casing and a test-fired casing from the SIG

Sauer pistol found in Hatfield's vehicle. She was able to match breechface marks,



                                           7
No. 77512-0-1/8

firing pin impression marks, and chamber marks.           Coric concluded that the

recovered shell casing had been fired by the pistol from Hatfield's vehicle.

       On cross-examination, Hatheld asked Coric whether she agreed that the

theory of identification that she utilized in her analysis of the shell casings "lacks

an objective standard." She responded, "It is subjective based on one's training

and experience." He continued to question her about the subjectivity of the

analysis and scholarly criticism to the theory of identification, resulting in the

following exchange:

       Q: All right. And you get to decide whether or not two samples match
          based upon a visual comparison; is that right?
       A: Based on my training and experience, yes.
       Q: Okay. And a match is determined if you decide there is significant
          agreement between the two—two items, right?
       A: Based on a theory of identification, yes.
       Q: Right, but significant agreement is also not defined in the field?
       A: Percentage-wise, no. Not with pattern matching.
       Q: There are no set number of objective criteria that must be met in
          order to form significant agreement.
       A: Are you referring to how many points you're looking for before
          you make a match?
       Q: Well, I'll get to that in a second, but there are no set number of
          objective criteria that you need to meet before you say that there's
          significant agreement.
       A: Well, the class have to be similar, and then there has to be
          sufficient agreement between the individual.
       Q: Again, that's a determination only you get to make, correct?
       A: And my peer-reviewer.
       Q: All right. There are no protocols or standards, and no set criteria
          exists for declaring what a match is.
       A: Well, there's the AFTE theory of identification.
       Q: Other than the theory itself.
       A: And significant research, yes, behind the validity—
       Q: Okay.
       A: —of it, yes.
       Q: You would agree with me that the conclusion, whether or not
          something matches, is based upon your competence and your
          experience, correct?
       A: Yes.


                                          8
No. 77512-0-1/9



Hatfield did not object to Coric's statement about her peer reviewer or move to

strike the testimony.

       After Hatfield finished his cross-examination, the State noted outside the

presence of the jury that it had not inquired about the peer review process at the

Washington State Patrol Crime Lab on direct examination because it "could

potentially be a violation of[the] confrontation clause." However, the State argued

that Hatfield had opened the door to evidence about the peer review process with

his questioning. Hatfield disagreed, arguing that he was questioning Coric about

her conclusions alone, "not about whether or not any other individual did any

additional—reached the same conclusions based upon their independent

evaluation of that." He argued that he did not ask the witness whether anyone else

had evaluated the evidence, and she had simply volunteered the information that

a peer reviewer was involved. He contended that further testimony about the peer

reviewer would be hearsay and would violate the confrontation clause. The State

responded that the thrust of the cross-examination was that Coric "all on her own

just decides to call out a match or not. That is simply not true."

       Coric provided an offer of proof that her work is subject to a technical peer

review process in which another trained firearm and toolmark examiner reviews

the same evidence and comes to an independent conclusion. Coric's report would

not issue unless she and the peer reviewer reached the same conclusion. The

court ruled that it would allow the State to inquire into peer review, but Hatfield

would also be allowed a fair amount of cross-examination as to the meaning of

that peer review. Hatfield noted a standing objection to any line of questioning


                                         9
No. 77512-0-1/10

related to peer review on the grounds that it was beyond the scope of cross-

examination and violated the confrontation clause.

       On redirect examination, the State elicited testimony from Coric about the

technical peer review process. Coric identified the colleague who had performed

the technical review in this case and stated that he agreed with her conclusion. On

re-cross examination, Hatfield asked Coric whether her peer reviewer used the

same theory of identification that she relied on, and she responded that he did. He

elicited testimony that the reviewer was Coric's coworker and not a supervisor.

       The jury found Hatfield guilty of burglary in the first degree and robbery in

the first degree. The jury also found by special verdict that Hatfield was armed

with a firearm at the time he committed both crimes. The State elected to dismiss

the charge of unlawful possession of a firearm in the first degree in light of the

jury's verdiots and in the administration of justice. The court found that the

evidence was insufficient for a rational trier of fact to find Hatfield guilty of count

three, the first degree robbery charge naming Boggs as the victim, and dismissed

the charge. The court found that Hatfield was a persistent offender as defined by

RCW 9.94A.030 and sentenced him to life in prison without the possibility of parole.


                                     ANALYSIS

I.     Preservation of Evidence

       Hatfield contends that the trial court erred in denying his motion to dismiss

or, in the alternative, to exclude the video evidence because the police failed to

preserve the portion of the video from the basement security camera that depicted

Diaz using drugs. He argues that the failure to preserve the rest of the video


                                        -10-
No. 77512-0-1/11

violated his essential due process rights to fundamental fairness and a meaningful

opportunity to present a complete defense under the Fourteenth Amendment.1

        We review a claimed violation of a defendant's constitutional right to due

process de novo. State v. Johnston, 143 Wn. App. 1, 11, 177 P.3d 1127 (2007).

To comply with the Fourteenth Amendment's guarantee of due process, the State

"has a duty to disclose material exculpatory evidence to the defense and a related

duty to preserve such evidence for use by the defense." State v. Wittenbarger, 124

Wn.2d 467, 475, 880 P.2d 517 (1994)(citing Brady v. Maryland, 373 U.S. 83, 10

S. Ct. 1194, 10 L. Ed. 2d 215 (1963); California v. Trombetta, 467 U.S. 479, 104

S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). If the State fails to preserve material

exculpatory evidence, the criminal charges must be dismissed. Id. "In order to be

considered 'material exculpatory evidence', the evidence must both possess an

exculpatory value that was apparent before it was destroyed and be of such a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means." Id. (citing Trombetta, 467 U.S. at 489).

        If unpreserved evidence is not "material exculpatory evidence" but is

"potentially useful" to the defense, the failure to preserve constitutes a denial of

due process only if the defendant can show bad faith on the part of law

enforcement. Arizona v. Younciblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed.

2d 281 (1988). "The presence or absence of bad faith by the police for purposes

of the Due Process Clause must necessarily turn on the police's knowledge of the



        1 Although Hatfield advanced several theories in support of his motion below, he assigns
error only to the denial of the motion to dismiss based on an alleged violation of his right to due
process.
No. 77512-0-1/12

exculpatory value of the evidence at the time it was lost or destroyed." Id. at 57,

n.*.   The United States Supreme Court has been unwilling "to read the

'fundamental fairness' requirement of the Due Process Clause... as imposing on

the police an undifferentiated and absolute duty to retain and to preserve all

material that might be of conceivable evidentiary significance in a particular

prosecution." Id. at 58.

       Diaz admitted to the police that the recording contained video of him using

narcotics. The officers who heard Diaz make this statement were available to

testify at trial and did in fact testify as to Diaz's admission. Hatfield argues that

Diaz's admission to police about what the video would show was not comparable

evidence "because visual evidence can be more persuasive than testimony."

Although video evidence may be more persuasive than testimony in many

instances, in this case,the statements of two police officers to whom Diaz admitted

using drugs were comparable to the unpreserved video evidence.

       Hatfield also argues that the exculpatory value of the unpreserved video

evidence was apparent because it constituted impeachment evidence. Evidence

of drug use by a witness is admissible for impeachment purposes if there is "a

reasonable inference that the witness was under the influence of drugs either at

the time of the events in question, or at the time of testifying at trial." State v.

Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991). Statements of a non-

testifying witness are subject to impeachment. ER 806. Hatfield does not provide

a citation to any authority stating that potential impeachment evidence possesses

apparent exculpatory value. "Where no authorities are cited in support of a




                                       - 12 -
No. 77512-0-1/13

proposition, the court is not required to search out authorities, but may assume

that counsel, after diligent search, has found none." DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Hatfield has not shown

that the exculpatory value of the potential impeachment evidence was apparent to

law enforcement. Because he has not met either prong of the Wittenbarger test,

the unpreserved video evidence was not material exculpatory evidence.

       Although the evidence was not materially exculpatory, it was potentially

useful to Hatfield as impeachment evidence. In response to the State's inquiry as

to whether the court was making a finding that the detective did not act in bad faith,

the court responded, "I do not find that the Detective acted in bad faith." This

statement is not unambiguously equivalent to a finding that the detective did not

act in bad faith, and written findings of fact on the motion to dismiss are not of

record with this court. However, the denial of the motion to dismiss implies a

finding that law enforcement did not act in bad faith, which we review for substantial

evidence. See State v. Ortiz, 119 Wn.2d 294, 301-02, 831 P.2d 1060 (1992),

overruled on other grounds by State v. Condon, 182 Wn.2d 307, 343 P.3d 357

(2015).

       At the time the trial court considered the motion to dismiss, the court had

already heard testimony from the detective assigned to the case during a CrR 3.5

and 3.6 hearing. He testified that Diaz had been reluctant to turn over the DVR

containing the video of the incident to police because "there was surveillance video

on that DVR of him having sex with his girlfriend ... as well as narcotics use." The

detective testified that Diaz asked him to constrain his review of the video to the




                                        - 13-
No. 77512-0-1/14

time frame of the incident. After he agreed, Diaz turned over the DVR and the

detective asked a Seattle Police Department video technician to download the

portion of the video in a one-hour time frame surrounding the incident.

       Hatfield argued below that the detective's knowledge that the remainder of

the video contained evidence of Diaz's drug use was sufficient to establish bad

faith. He does not argue bad faith at all in his appellate briefing. Because Hatfield

has not established that the police knew of any exculpatory value of the evidence

when they failed to preserve the remainder of the video, he has not shown that

they acted in bad faith. The trial court did not err in denying the motion to dismiss.


II.    Ineffective Assistance of Counsel

       Next, Hatfield argues that his trial counsel provided him with ineffective

assistance by failing to argue that additional portions of Hatfield's interrogation

should be admitted under the rule of completeness.

       Every criminal defendant is guaranteed the constitutional right to effective

assistance of counsel. Strickland v. Washington,466 U.S. 668,685-86, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260

(2011). To establish a claim of ineffective assistance, the defendant must show

that his counsel's performance was deficient and that the deficient was prejudicial.

Strickland, 466 U.S. at 687. If either prong of the test is not satisfied, our inquiry

ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).

       Deficient performance is that which falls below an objective standard of

reasonableness based on consideration of all the circumstances. State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "Courts engage in a


                                        - 14 -
No. 77512-0-1/15

strong presumption counsel's representation was effective." Id. at 335. Matters

that can be characterized as legitimate trial strategy or tactics do not constitute

deficient performance. State v. KvIlo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

      To satisfy the second portion of the Strickland test, a defendant must show

that there is a reasonable probability that the result of the trial would have been

different but for counsel's alleged error. 466 U.S. at 694. Although this standard

does not require a defendant to show that the action more likely than not altered

the outcome, "[t]he likelihood of a different result must be substantial, not just

conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed.

2d 624 (2011).

      The State offered a redacted version of Hatfield's recorded interview with

police that omitted references to prior convictions, prior police contact, and another

ongoing robbery investigation. The jury saw sections of Hatfield's interview with

police in which he admitted that the gunman in the security footage looked like him

and asked if they could work out a deal for reduced charges. The segments of the

video that were not shown to the jury included five more statements from Hatfield

that the robber in the video looked like him, accompanied by explicit statements

that he was not the man in the video.

       Hatfield contends that his counsel was deficient in failing to argue for the

inclusion of these additional statements. However, Hatfield's trial counsel may

reasonably have concluded that Hatfield's repeated admissions that the man

looked like him would be more damaging than his explicit denial of identity would




                                        -15-
No. 77512-0-1/16

be helpful. Because this calculus could be characterized as a legitimate trial

strategy or tactic, counsel's performance was not deficient.

        Hatfield argues that his trial counsel's alleged error was prejudicial because

allowing the statement that the perpetrator looked like him without the clarification

that it was not him undermined his defense of identity. He contends that the other

evidence of his guilt was not so overwhelming as to render this error trivial because

there were challenges to Boggs' and Brown's credibility and the expert's

conclusion tying the gun to the shell casing was subject to debate.

        The State acknowledged in its closing argument that the major issue was

the identity of the shooter. The State argued that Hatfield's statement that the

person in the video looked like him and subsequent attempt to bargain with police

indicated that "[h]e knew he was caught." The State characterized this as an

"acknowledgement of his resemblance." In Hatfield's closing, his counsel agreed

that the primary issue was identification. He argued that the implication when

Hatfield said the person in the video looked like him was that "it's not him, but it

looks like him." Defense counsel argued that Hatfield offered to cut a deal with

police because he knew he would begin experiencing heroin withdrawal symptoms

soon.

        It was clear throughout the trial that Hatfield's defense was based on

identity. The State did not argue that Hatfield's statement that the man in the video

looked like him amounted to a confession. Two witnesses identified Hatfield as

the shooter at trial. The jury viewed the video of the man wielding a gun during the

robbery and were able to decide for themselves whether that man in the video was




                                        - 16-
No. 77512-0-1/17

Hatfield. Admission of Hatfield's clarifying statement in the recorded interrogation

that the man looked like him but was not him was not likely to have changed the

outcome of the trial. Because he cannot show deficient performance or prejudice,

Hatfield's claim of ineffective assistance of counsel fails.


        Motion for Frye Hearing

        Hatfield contends that the trial court erred in denying his request for a Frve2

hearing on ballistic identification because there is "significant dispute among

qualified experts in the scientific community about" the validity of the method used

to establish comparison.3 Hatfield devotes a significant portion of his briefing to

this issue, arguing that the 2008 and 2009 reports of the National Research

Council of the National Academy of Sciences (NAS) and the 2016 President's

Council of Advisors on Science and Technology(PCAST)report call the validity of

the science into question.

        When ruling on Hatfield's motion for a Frye hearing, the trial court

recognized that Washington appellate courts had continued to approve of ballistics

identification evidence after the 2008 and 2009 NAS reports were published. The

court framed the relevant question as whether the 2016 PCAST report raised a

significant enough dispute as to the general acceptance of the evidence to

necessitate a Frye hearing for ballistics. The court found that it did not.



        2 Frye v. United States, 293 F. 1013(D.C. Cir. 1923).
        3 Although  Hatfield's assignment of error includes both the trial court's denial of the motion
for a Frye hearing and admission of the evidence, Hatfield does not argue that the evidence should
not have been admitted even if a Frye hearing was not required. We decline to address this issue
in the absence of argument. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413(1996)
("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.").


                                               - 17-
No. 77512-0-1/18

       Washington courts use the Frye test to evaluate scientific evidence. State

v. Gregory, 158 Wn.2d 759, 829, 147 P.3d 1201 (2006), overruled on other

grounds by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134(2014). Under Frye,

scientific evidence is not admissible unless "[b]oth the scientific theory underlying

the evidence and the technique or methodology used to implement it" are generally

accepted in the relevant scientific community. Id. Although scientific opinion need

not be unanimous,the evidence may not be admitted if there is a significant dispute

among qualified scientists in the relevant community. Id.           Once a particular

methodology has been generally accepted in the community, "application of the

science to a particular case is a matter of weight and admissibility under ER 702."

Id.

       We review the trial court's determination of whether to hold a Frye hearing

de novo. Id. at 830. The Washington Supreme Court has remarked that:

              Once this court has made a determination that the Frye test is
       met as to a specific novel scientific theory or principle, trial courts can
       generally rely upon that determination as settling such theory's
       admissibility in future cases. However, trial courts must still
       undertake the Frye analysis if one party produces new evidence
       which seriously questions the continued general acceptance or lack
       of acceptance as to that theory within the relevant scientific
       community.

State v. Cauthron, 120 Wn.2d 879, 888 n.3, 846 P.2d 502 (1993), overruled on

other grounds by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667(1997).

       Haffield argues that "[t]here is no Washington precedent on whether ballistic

identification evidence is admissible under the Frye standard" and "no appellate

court anywhere in the country has addressed ballistic evidence under the Frye

standard in light of the newly minted PCAST report." However, after Hatfield


                                         -18-
No. 77512-0-1/19

submitted his briefing, we considered a nearly identical challenge to the validity of

ballistic identification methodology in State v. DeJesus. 7 Wn. App. 2d 849, 436

P.3d 834 (2019). In DeJesus, the challenged scientific evidence stemmed from a

Washington State Patrol Crime Laboratory analysts comparison of two spent shell

casings and conclusion that they were fired from the same gun. Id. at 858.

DeJesus argued that there was a "significant dispute among qualified scientists in

the relevant scientific community about the validity of ballistic identification

methodology." Id. at 860. He cited the 2008 and 2009 NAS reports and the 2016

PCAST report in support of his argument. Id. at 861. We rejected his contention,

finding that:

              [T]he reports on which DeJesus relies do not affect the
       general scientific acceptance of ballistic identification. Instead, the
       problems they espouse bear on the question of reliability of the
       individual test and tester at issue. These questions are then
       considered by the trier of fact in assessing the weight to be given the
       evidence.

Id. at 863-64. We also looked to other jurisdictions and concluded that [c]ourts

from around the country have universally held that toolmark analysis is generally

accepted." Id. at 865.

       Because DeJesus considered the same challenges to the validity of the

evidence, we may rely on the previous judicial determination that this method of

ballistics identification satisfies the Frye test. The trial court did not err in denying

Hatfield's request for a Frye hearing on this evidence.




                                         - 19-
No. 77512-0-1/20

IV.   Admission of Out-of-Court Statements

       Hatfield contends that the court violated his Sixth Amendment right to

confront witnesses against him by admitting statements of two non-testifying

witnesses at trial. He also contends that these statements constituted inadmissible

hearsay. We conclude that these constitutional errors were harmless beyond a

reasonable doubt.

      A. Diaz Statement

       Hatfield first argues that the court erred in admitting Diaz's out-of-court

statement to police officers that he had found the shell casing in the basement.

              1. Hearsay

       Hatfield contends that Diaz's statement regarding the shell casing was

inadmissible hearsay. "Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted." ER 801(c). Hearsay evidence is not admissible

unless an exception or exclusion applies. ER 802. "A statement is not hearsay if

it is used only to show the effect on the listener, without regard to the truth of the

statement." State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631 (2006). We

review de novo a trial court's legal determination of whether a statement is

hearsay. State v. Gonzalez-Gonzalez, 193 Wn. App. 683, 688-89, 370 P.3d 989

(2016).

       The State argues that the statement was not hearsay because it was not

offered for its truth but to prove "why police accepted the casing from [Diaz] and

had it analyzed." "Out-of-court declarations made to a law enforcement officer may




                                        - 20 -
No. 77512-0-1/21

be admitted to demonstrate the officer's or the declarant's state of mind only if their

state of mind is relevant to a material issue in the case; otherwise, such

declarations are hearsay." State v. Johnson, 61 Wn. App. 539, 545, 811 P.2d 687

(1991). "[1]f necessary at trial for the officer to relate historical facts about the case,

it would be sufficient for him to report he acted upon 'information received." State

v. Aaron, 57 Wn. App. 277, 281, 787 P.2d 949 (1990) (quoting E. Cleary,

McCormick on Evidence § 249, at 733(3d ed. 1984)).

       The State does not specifically explain why the officers' state of mind was

relevant to a material issue in the case, nor is the reason evident from the record.

The State argues that the officers would have had no clear reason to analyze the

shell casing given to them by Diaz without his statement explaining where he had

found the object. This is not persuasive. Even if a person who had recently been

shot in his home wordlessly handed a shell casing to officers investigating the

shooting, it strains credulity to suggest that the officers would disregard the object.

Because the investigating officers' state of mind was not relevant to a material

issue in this case, Diaz's statement that he found the shell casing in the basement

was hearsay.

               2. Confrontation Clause

        Hatfield also contends that the court violated his Sixth Amendment right to

confront witnesses against him by admitting Diaz's statement about the origin of

the shell casing at trial. The State responds that Hatfield failed to object to the

testimony on confrontation clause grounds and therefore has waived review of this

issue. Hatfield argues that his pretrial motions and hearsay objection at trial were




                                          - 21 -
No. 77512-0-1/22

sufficient to preserve the alleged confrontation error for review or, in the alternative,

that this is a manifest constitutional error that may be raised for the first time on

appeal.

       As a preliminary note, since the completion of the briefing in this case, the

Washington Supreme Court has held that a defendant must assert his right to

confrontation at trial to preserve the challenge for appeal. State v. Burns, 193

Wn.2d 190, 210-11, 438 P.3d 1183 (2019). "Where a defendant does not object

at trial, 'nothing the trial court does or fails to do is a denial of the right, and if there

is no denial of a right, there is no error by the trial court, manifest or otherwise, that

an appellate court can review." Id. at 211 (quoting State v. Fraser, 170 Wn. App.

13, 25-26, 282 P.3d 152 (2012)). Therefore, the alleged confrontation error may

not be raised for the first time on appeal.

       Generally, if a judge makes a definite, final ruling on a motion in limine, then

the losing party is deemed to have a standing objection, and further objection is

not required to preserve the error. State v. Powell, 126 Wn.2d 244, 256-57, 893

P.2d 615(1995). When a trial judge reserves the ruling, "'any error in admitting or

excluding evidence is waived unless the trial court is given an opportunity to

reconsider its ruling." Id. at 257 (quoting State v. Carlson, 61 Wn. App. 865, 875,

812 P.2d 536 (1991)). In that instance, the party is required to object again during

trial to preserve the issue for appeal. Id. The Washington Supreme Court has

found that a hearsay objection was preserved for appeal when the appellant

"clearly raised the hearsay argument" in a pretrial motion to exclude evidence "and




                                           - 22 -
No. 77512-0-1/23

gave the trial court an opportunity to address it." In re Det. of Coe, 175 Wn.2d 482,

504, 286 P.3d 29(2012).

       Haffield included a confrontation objection in his motion to exclude the shell

casing, which was denied. The denial was a final ruling, so Hatfield is deemed to

have a standing objection to the evidence of the shell casing and was not required

to object further to preserve the issue for appeal. Because Hatfield raised the

confrontation issue in his pretrial motions, we will address the merits of his

argument.

       The confrontation clause of the Sixth Amendment bars admission of

testimonial statements of a witness who does not appear at trial, unless the witness

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

examination. Crawford v. Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354, 158

L. Ed. 2d 177(2004). Testimonial statements include those that are the functional

equivalent of in-court testimony or that "were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial." Id. at 52.

       When the out-of-court statements were made to police, the primary purpose

of the contact determines whether or not the statements were testimonial. Davis v.

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

Statements are nontestimonial if the "primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency" but testimonial if "the

primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution." Id. This primary purpose test applies equally




                                          -23-
No. 77512-0-1/24

to statements made during formal interrogation and to spontaneous statements,

"volunteered testimony[,] or answers to open-ended questions." State v. Reed, 168

Wn. App. 553, 569 n.9, 278 P.3d 203(2012)(quoting Davis, 547 U.S. at 822 n.1).

       Diaz did not appear at trial and was not cross-examined by Hatfield at any

point. Although there was no formal interrogation in progress, Diaz volunteered

the statement that he had found the shell casing in the basement to officers

investigating the robbery and shooting days after it occurred. There was no

ongoing emergency at that time, and the statement was testimonial. The trial

court's admission of Diaz's out-of-court statement violated Hatfield's constitutional

right to confrontation. However, as discussed below, this error was harmless

beyond a reasonable doubt.

       B. Expert Statement

       Hatfield also contends that the court's admission of a non-testifying expert's

conclusion that the shell casing was fired from the gun found in Hatfield's vehicle

constituted inadmissible hearsay and violated his Sixth Amendment right to

confrontation. The State argues that Hatfield elicited the evidence that the

testifying expert's conclusion was peer-reviewed during cross-examination, which

opened the door to the witness's explanation of the peer review process during

redirect examination.

              1. Open Door Doctrine

      Appellate courts review a trial court's decision to allow evidence under the

open door doctrine for abuse of discretion. State v. Fisher, 165 Wn.2d 727, 750,

202 P.3d 937 (2009). A trial court abuses its discretion when "no reasonable




                                       -24 -
No. 77512-0-1/25

person would have decided the issue as the trial court did." State v. Russell, 125

Wn.2d 24, 78, 882 P.2d 747(1994).

       The State first argues that "[a]ny error in the witness's explanation of [the

evidence elicited during cross-examination that the expert's conclusion was peer-

reviewed] during re-direct examination was invited by Hatfield when he introduced

the topic." The State cites State v. Henderson for the proposition that a party may

not set up error at trial and then claim to be entitled to reversal based on that error

on appeal. 114 Wn.2d 867, 870, 792 P.2d 514 (1990)(quoting State v. Pam, 101

Wn.2d 507, 511, 680 P.2d 762 (1984), overruled by State v. Olson, 126 Wn.2d

315, 893 P.2d 629 (1995). In Henderson, the defendant sought reversal for

instructional error after the court gave jury instructions that the defendant himself

had proposed. Id. at 868. If Hatfield were challenging the admission of Coric's first

statement about peer review that he elicited on cross-examination, then the invited

error doctrine might bar such a challenge. However, because he is challenging

the later admission of the peer reviewer's conclusion, the invited error doctrine

does not squarely apply.

      The State also argues that Hatfield opened the door to the challenged

evidence because he first raised the subject on cross-examination. Haffield

argues that the elicited testimony did not support the introduction of hearsay

evidence that violated his right to confrontation and that "[t]he open door doctrine

is not a free pass to get anything into evidence."

       When a party opens up a subject of inquiry on direct or cross-examination,

the rules permit cross-examination or redirect examination within the scope of the




                                        - 25 -
No. 77512-0-1/26

new subject matter. State v. Gefeller, 76 Wn.2d 449,455,458 P.2d 17(1969). "To

close the door after receiving only a part of the evidence not only leaves the matter

suspended in air at a point markedly advantageous to the party who opened the

door, but might well limit the proof to half-truths." Id. Evidence offered to explain,

clarify, or contradict other evidence is subject to exclusion if it is irrelevant or if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. ER 402; ER 403; Fisher, 165 Wn.2d

at 750.

        If a party elicits testimony that would otherwise be inadmissible, the party

opens the door to relevant rebuttal evidence that would also otherwise be

inadmissible, "even if constitutionally protected." State v. Hartzell, 156 Wn. App.

918, 934, 237 P.3d 928 (2010). However, the introduction of admissible evidence

does not open the door to rebuttal by way of inadmissible evidence. In this

instance, the open door doctrine "must give way to constitutional concerns such

as the right to a fair trial." State v. Jones, 144 Wn. App. 284, 298, 183 P.3d 307

(2008). Even if a defendant opens the door "to evidence or examination of a

particular subject at trial, the prosecutor is not absolved of her ethical duty to

ensure a fair trial by presenting only competent evidence on this subject." Id.

(emphasis omitted).

       The simple fact elicited by Hatfield that Coric's colleague also analyzed the

evidence does not appear to be inadmissible. This detail may have raised a

question in the minds of the jury requiring explanation of the Washington State

Patrol Crime Lab's peer review policy. Because Haffield raised this new subject



    '
                                          - 26 -
No. 77512-0-1/27

for the first time on cross-examination, the trial court's decision to allow the State

to present evidence about the peer review process in rebuttal does not appear to

be an abuse of discretion.

                2. Scope of Examination

        We next consider the scope of permissible evidence to which this statement

opened the door.4 Because the elicited statement appears to be admissible, the

State was only permitted to elicit otherwise admissible evidence to explain or clarify

this testimony on rebuttal.

        The peer review policy itself was likely admissible as rebuttal. However,

Hatfield argues that the peer reviewer's conclusion was inadmissible hearsay. The

peer reviewer's conclusion was an out-of-court statement admitted for its truth, and

therefore constituted hearsay. The State did not argue below, nor does it argue

on appeal, that this evidence would have been admissible if Hatfield had not

opened the door. Although the elicited testimony opened the door to rebuttal

regarding the admissible evidence of the peer review policy, it did not open the

door to the inadmissible testimony of the peer reviewer's conclusion. Because the

State exceeded the scope of permissible redirect examination, the court abused

its discretion in allowing testimony as to the peer reviewer's out-of-court statement




        4 The State argues in passing that Hatfield has not preserved his objection to the scope of
the State's redirect examination. Because Hatfield lodged a standing objection to the peer review
evidence on the grounds that it was beyond the scope of cross-examination, he was not required
to object again when the testimony was offered to preserve the issue for appeal. See Powell, 126
Wn.2d at 256-5


                                             -27 -
No. 77512-0-1/28

              3. Confrontation Clause

       Hatfield also argues that Coric's testimony about the peer reviewer's

conclusion violated his constitutional right to confront witnesses against him. An

expert comes within the scope of the confrontation clause when he makes a

statement of fact that tends to inculpate the accused. State v. Lui, 179 Wn.2d 457,

462, 315 P.3d 493 (2014). A testifying expert may express an opinion based on

the technical, nontestimonial work of non-testifying laboratory technicians, but

"may not parrot the conclusions" of another non-testifying expert. Id. at 484.

       Here, the peer reviewer performed the same analysis as Coric and reached

an independent conclusion. This was not a laboratory technician performing a

purely technical task. His conclusion that the shell casing was fired by the gun

found in Hatfield's vehicle was a statement of fact that tended to inculpate Hatfield.

Because he did not testify at trial and was not subject to cross-examination,

admitting his conclusion violated Hatfield's right to confrontation.

       C. Harmless Error

       The State contends that any error in admitting the out-of-court statements

was harmless because "the other evidence that Hatfield was the robber who shot

Diaz was overwhelming." Confrontation errors require reversal unless the State

demonstrates beyond a reasonable doubt that the error did not contribute to the

verdict. State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012). An error in

admission of evidence is not of constitutional magnitude and is "not prejudicial

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




                                       -28-
No. 77512-0-1/29

materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599,

637 P.2d 961 (1981).

       In light of the other evidence, especially the video evidence, these errors

were harmless beyond a reasonable doubt. The video from the basement security

camera shows the gunman's face from multiple angles, including directly facing

the camera and in profile. The jury was able to compare these images to the

videos of Hatfield during his interview with detectives and during the search of his

person after his arrest three weeks later, as well as his appearance in the

courtroom. At trial, Brown, another participant in the robbery, identified Hatfield as

the gunman during the robbery. Although he had not met the gunman before that

night, Brown had substantial opportunity to observe him when driving to the house,

in the basement as the robbery occurred, when driving away from the scene, and

when dividing up the stolen property. His identification was not challenged on

cross-examination.

       Boggs, one of the victims of the robbery, also identified Hatheld as the

gunman at trial. He had also identified Hatfield's photograph in a photo montage

twelve days after the robbery. On the night of the robbery, Boggs had the

opportunity to observe the gunman when discussing the drug transaction upstairs

and when the robbery was occurring in the basement. Boggs is looking at the

gunman for the majority of the video showing a portion of the robbery.

       Even if Diaz's statement that he had found the shell casing in the basement

and the peer reviewer's conclusion that the shell casing was fired by the gun found

in Hatfield's vehicle had been properly excluded, the other evidence of Hatheld's




                                       -29-
No. 77512-0-1/30

guilt was overwhelming.      The confrontation errors were harmless beyond a

reasonable doubt.


V.     Unanimity

       Hatfield contends that his right to a unanimous jury verdict was violated in

two ways. First, he argues that the State produced insufficient evidence to support

one of the alternative means of committing burglary. Second, he argues that the

State failed to specify the victim assaulted during the burglary, and the jury should

have received a unanimity instruction.

       Criminal defendants have the right to a unanimous jury verdict in

Washington. Const. art. I, § 21.        Because this issue affects a defendant's

fundamental constitutional rights, it may be raised for the first time on appeal. State

v. Armstrong, 188 Wn.2d 333, 339, 394 P.3d 373(2017). We review constitutional

issues de novo. Id.

       A. Means for Committing Burglary

       Hatfield contends that the State did not elect to rely on one of the two

alternative means for committing burglary, and he was therefore denied his right

to a unanimous jury verdict. The State responds that entering and remaining are

not alternative means of committing burglary and, even if they were, that there was

substantial evidence of both means.

       "An alternative means crime is one where the legislature has provided that

the State may prove the proscribed criminal conduct in a variety of ways." Id. at

340. Contrary to the State's position, we have consistently treated entering

unlawfully and remaining unlawfully as alternative means of committing burglary.


                                        - 30 -
No. 77512-0-1/31

See, e.g., State v. Allen, 127 Wn. App. 125, 110 P.3d 849 (2005); State v.

Gonzalez, 133 Wn. App. 236, 148 P.3d 1046 (2006); State v. Sony, 184 Wn. App.

496, 337 P.3d 397 (2014).

        Where alternative means of committing a charged crime are alleged and

substantial evidence supports both alternative means submitted to the jury,

unanimity as to the means is not required. Armstrong, 188 Wn.2d at 340. When

"constitutionally sufficient evidence supports both charged alternatives, the lack of

jury unanimity does not entail the danger. . . that any of the jury members may

have based their finding of guilt on an invalid ground." State v. Whitney, 108 Wn.2d

506, 511, 739 P.2d 1150 (1987). The evidence is constitutionally sufficient if,

viewed in the light most favorable to the State, a rational trier of fact would be

justified in finding guilt beyond a reasonable doubt. Armstrong, 188 Wn.2d at 341.

However, "[w]hen one alternative means of committing a crime has evidentiary

support and another does not, courts may not assume the jury relied unanimously

on the supported means." State v. Woodlyn, 188 Wn.2d 157, 162, 392 P.3d 1062

(2017).

        Although there is no dispute that the State produced sufficient evidence of

unlawful remaining, Hatfield contends that the State did not produce sufficient

evidence to show that he entered a building unlawfully. The jury was instructed

that:

               A person commits the crime of burglary in the first degree
        when he or she enters or remains unlawfully in a building with intent
        to commit a crime against a person or property therein, and if, in
        entering or while in the building or in immediate flight therefrom, that
        person is armed with a deadly weapon or assaults any person.




                                        - 31 -
No. 77512-0-1/32

The jury was also instructed that "[b]ui!ding, in addition to its ordinary meaning,

includes any dwelling." "[E]ach unit of a building consisting of two or more units

separately secured or occupied is a separate building." RCW 9A.04.110(5). "In

the situation involving the multi-unit structure, each tenant has a privacy interest in

his or her room or apartment, and that interest is separate from the interests of

other tenants. Thus, it makes sense to characterize the burglarized rooms as

separate 'buildings." State v. Thompson, 71 Wn. App. 634, 645, 861 P.2d 492

(1993).

       Viewed in the light most favorable to the State, a rational finder of fact could

find that Hatfield unlawfully entered a building beyond a reasonable doubt. Boggs

testified that he sublet the entire basement of the house to Diaz and his girlfriend.

The basement was a separately-occupied dwelling from the upstairs and therefore

a separate building. Boggs also testified that guests were not allowed in the

basement as a rule, especially when there was a drug transaction going on. On

the night of the incident, Boggs testified that he told the three men to wait upstairs

while he retrieved the drugs. Because Hatfield did not have permission to enter the

basement and the basement was a separate dwelling from the upstairs, sufficient

evidence supports the alternative means of unlawful entry. Hatfield's right to a

unanimous jury verdict was not violated.

       B. Identity of Victim

       Hatfield also contends that his right to jury unanimity was violated because

the prosecutor did not specify which victim was assaulted during the burglary and

the jury did not receive a unanimity instruction as required by State v. Petrich. 101




                                        - 32 -
No. 77512-0-1/33

Wn.2d 566, 572, 683 P.2d 173 (1984), overruled on other grounds by State v.

Kitchen, 110 Wn.2d 403, 756 P.2d 105(1988). The State responds that unanimity

was not required as to the person assaulted because there was sufficient evidence

that both men were assaulted.

       The information charged Hatfield with burglary in the first degree, alleging

that "the defendant and another participant in the crime were armed with a deadly

weapon and did assault a person, to-wit; Adrien William Diaz and Kevin Dale

Boggs." The jury was instructed that, to convict Hatfield of burglary, it must find

"[ghat in so entering or while in the building or in immediate flight from the building

the defendant was armed with a deadly weapon or assaulted a person." The State

concedes that it did not elect to rely on the assault of only one victim. The court

did not instruct the jury that it needed to agree unanimously on which person was

assaulted.

       Hatfield argues that this is a multiple acts case, while the State contends

that this is another alternative means situation. "When the prosecutor presents

evidence of several acts which could form the basis of one count charged, either

the State must tell the jury which act to rely on in its deliberations or the court must

instruct the jury to agree on a specified criminal act." State v. Crane, 116 Wn.2d

315, 325, 804 P.2d 10(1991), overruled on other grounds by In re Pers. Restraint

of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002).

       Our decision in State v. Williams is factually similar. 136 Wn. App. 486, 150

P.3d 111 (2007). In Williams, the defendant was charged with burglary in the first

degree, and the information alleged that "in the course of the burglary, Williams




                                        - 33 -
No. 77512-0-1/34

assaulted 'a person, to wit: Makeba Otis and Leslie Johnson.'" Id. at 491. The jury

was instructed that, to convict Williams of burglary in the first degree, it must find

beyond a reasonable doubt "[t]hat in so entering or while in the building or in

immediate flight from the building the defendant or an accomplice in the crime

charged assaulted a person." Id. at 492 (emphasis omitted). The court did not

instruct the jury that it must unanimously agree on the person who Williams

assaulted to convict him of the charged crime. Id.

       In Williams, we reasoned that "two distinct criminal acts were alleged: the

assault against Johnson and the assault against Otis. Either criminal act was

sufficient to satisfy the assault element of first degree burglary." Id. at 496-97. We

explicitly rejected the State's contention that the two assaults were alternative

means of committing the charged crime:

              Under the statute, burglary in the first degree may be
       committed in two different ways, either by being armed with a deadly
       weapon, or by assaulting any person. Accordingly, these two modes
       of commission constitute alternative means by which the crime of
       burglary may be proved. In contrast, the two assaults alleged in this
       case constitute only one mode of commission under the statute, i.e.
       assault.

Id. at 498. Because the State had not specifically elected to rely on one assault,

we found that a unanimity instruction was required. Id.

       The State argues that Armstrong implicitly abrogates the analysis in

Williams. In Armstrong, the defendant was charged with violation of a court order

by either assault or two prior convictions for violation of a court order. 188 Wn.2d

at 338. Only one victim was alleged. Id. at 336. Although the dissent argued that

an "alternative acts" or "alternative crimes" analysis would have been more




                                       - 34 -
No. 77512-0-1/35

appropriate, the majority considered the case to be "a straightforward application"

of the alternative means analysis. Id. at 347,349(Gordon McCloud, J., dissenting).

Therefore, Armstrong does not appear to affect the analysis in Williams.

       Under Williams, Hatfield was entitled to a unanimity instruction because the

State alleged two distinct criminal acts to support one means of committing first

degree burglary.

      C. Harmless Error

      The Washington Supreme Court clarified the harmless error analysis for

lack of unanimity in multiple acts cases in Kitchen:

             [I]n multiple acts cases, when the State fails to elect which
      incident it relies upon for the conviction or the trial court fails to
      instruct the jury that all jurors must agree that the same underlying
      criminal act has been proved beyond a reasonable doubt, the error
      will be deemed harmless only if no rational trier of fact could have
      entertained a reasonable doubt that each incident established the
      crime beyond a reasonable doubt.

110 Wn.2d at 405-06. Because this is constitutional error, the error is presumed

prejudicial and the conviction will not be upheld unless it is harmless beyond a

reasonable doubt. Id. at 411-12.

      The jury was instructed that:

             An assault is an intentional touching or striking or shooting of
      another person that is harmful or offensive regardless of whether any
      physical injury is done to the person.                              .
             An assault is also an act done with the intent to create in
      another apprehension and fear of bodily injury, and which in fact
      creates in another a reasonable apprehension and imminent fear of
      bodily injury even though the actor did not actually intend to inflict
      bodily injury.

Hatfield concedes that there was no reasonable doubt that Diaz was assaulted

because he was shot. However, he argues that the evidence does not show that


                                       - 35 -
No. 77512-0-1/36

Boggs was assaulted beyond a reasonable doubt. Hatfield concedes that "[t]he

video shows the man with the gun made brief physical contact with Boggs" and

"pick[ed] up a pillow and put the gun in it at one point" but argues that this is

insufficient to show that Boggs was assaulted. The evidence does not support this

characterization of the encounter. The video showed that the gunman made

intentional physical contact with Boggs, shoving him three times. This contact was

offensive in its own right, but particularly so because the assailant was holding a

gun at the time.

      The video also shows the gunman intentionally putting a pillow over the

muzzle of the gun, presumably to convey an intent to silence a shot. Boggs

testified that he believed he was going to be shot when the gunman covered the

muzzle of the gun with the pillow and that he was panicking. This fear was

reasonable given the fact that he was being robbed. The evidence established

that Boggs was assaulted beyond a reasonable doubt, and no rational tier of fact

could have concluded otherwise. The error was harmless.


VI.    Eighth Amendment

      In a supplemental assignment of error, Hatfield contends that his sentence

constituted cruel and unusual punishment in violation of the Eighth Amendment of

the United States Constitution and Article 1, Section 14 of the Washington State

Constitution    because    his life sentence   under the     Persistent Offender

Accountability Act(POAA)5 was based in part on a strike offense committed when

he was a youthful adult. Hatfield argues that the sentencing court should have


      5   Chapter 9.94A.570 RCW.


                                      - 36 -
No. 77512-0-1/37

been given discretion to consider the characteristics of youth that persist when a

defendant is 24 years old, as Hatfield was at the time he committed his first strike

offense, when deciding whether to impose a life sentence. Appellate courts

consider constitutional challenges to sentencing de novo. State v. Cubias, 155

Wn.2d 549, 552, 120 P.3d 929 (2005).

       The Washington State Supreme Court considered this precise issue very

recently in State v. Moretti. 193 Wn.2d 809, 446 P.3d 609, 613(2019). The three

consolidated cases "each ask[ed] whether it is constitutional to apply the POAA to

people who were in their 30s or 40s when they committed their third strike but were

young adults when they committed their first strike." Id. at 814. The defendants in

Moretti were 19 to 20 years old when they committed their first strike offenses. Id.

at 814-15, 817. The court held that Article I, Section 14 of the Washington

Constitution did not forbid mandatory sentences of life without the possibility of

parole under the POAA in this circumstance. Id. at 818-19. Because Article I,

Section 14 offers greater protection to recidivists and juveniles than the federal

constitution, the court did not reach the petitioners' argument that the punishment

was cruel and unusual under the Eighth Amendment to the United States

Constitution. Id. at 819.

       Hatfield committed his first strike offense when he was 24 years old and

committed the offenses at issue in this case when he was in his 50s. Although

Hatfield was a youthful adult when he committed his first strike offense, Moretti

makes clear that the imposition of a life sentence under the POAA was

constitutional.




                                       - 37 -
No. 77512-0-1/38

VII.    Cumulative Error

        Hatfield contends that the cumulative effect of the errors alleged above

deprived him of his constitutional right to a fair trial. "The accumulation of errors

may deny the defendant a fair trial and therefore warrant reversal even where each

error standing alone would not." State v. Davis, 175 Wn.2d 287, 345, 290 P.3d 43

(2012), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1,427 P.3d

621 (2018). However, when there is overwhelming evidence of the defendant's

guilt, cumulative errors do not require reversal. In re Pers. Restraint of Cross, 180

Wn.2d 664, 691, 327 P.3d 660 (2014), abrogated on other grounds by Gregory,

192 Wn.2d 1 (2018). A defendant has the right to a fair trial, not a perfect one. In

re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007).

        Although a number of errors occurred in this case, Hatfield was not denied

his right to a fair trial. The evidence of Hatfield's guilt was overwhelming, as

described above, and reversal is not required.


VIII.   Statement of Additional Grounds

        Hatfield assigns error to a number of evidentiary rulings in his statements

of additional grounds for review. He also contends that his trial counsel's failure

to object to certain challenged statements constituted ineffective assistance and

that the circumstances surrounding Dillenburg's testimony infringed on his rights.

        A. Admission of 911 Call

        Hatfield contends that the statements made to the dispatcher in the 911 call

constituted inadmissible hearsay and violated his right to confrontation.




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No. 77512-0-1/39

       Hatfield lodged a general pretrial objection to exclude out-of-court

statements on hearsay and confrontation grounds. The State identified the 911

call as evidence that it intended to offer on the theory that the statements fell into

the exceptions to the hearsay rule for excited utterances and present sense

impressions. At that point, Haffield moved to exclude Diaz and the other residents

of the house as witnesses. The court reserved ruling on both the motion to exclude

the witnesses and the objection to out-of-court statements.           During Boggs'

testimony, the State moved to admit the recording of the 911 call. Hatheld stated

that he had no objection. The court granted the State's motion to publish the

exhibit to the jury, and the State played the recording in open court.

       As stated above, when a trial judge rules that further objections at trial are

required or makes a tentative ruling on a motion in limine, such as reserving the

ruling, "any error in admitting or excluding evidence is waived unless the trial court

is given an opportunity to reconsider its ruling." Powell, 126 Wn.2d at 256-57

(quoting Carlson, 61 Wn. App. at 875). In that instance, the party is required to

object again during trial to preserve the issue for appeal. Id. at 257. Because the

court reserved ruling on this issue and Hatfield voiced no objection when the

evidence was offered, he has not preserved his objection for review. Also, Haffield

may not assert a confrontation challenge to these statements for the first time on

appeal. See Burns, 193 Wn.2d at 210-11.

       B. Ineffective Assistance of Counsel

       Hatfield also contends that his trial counsel provided ineffective assistance

when he failed to object to the 911 call on hearsay and confrontation grounds.




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No. 77512-0-1/40

       Again, as explained above, matters that can be characterized as legitimate

trial strategy or tactics do not constitute deficient performance. KvIlo, 166 Wn.2d

at 863. "The decision of when or whether to object is a classic example of trial

tactics. Only in egregious circumstances, on testimony central to the State's case,

will the failure to object constitute incompetence of counsel justifying reversal."

State v. Madison,53 Wn. App. 754, 763,770 P.2d 662(1989). The failure to object

was not an egregious error and the challenged statements were not central to the

State's case. Because Hatfield cannot show that his counsel's performance was

deficient, his claim of ineffective assistance fails.

        C. Dillenburg Statements

        Hatfield contends that the court erred in admitting Brown's testimony

regarding Dillenburg's out-of-court statements under the co-conspirator exception

to the rule against hearsay. He argues that this rule "specifically applies only to

conspiracy[cases] and [co-conspirators], not[cases] prosecuted under a theory of

accomplice liability where a co-defendant classified as an accomplice [refuses] to

testify."

        At trial, the State asked Brown about Dillenburg's statements made while

the three men were driving to the house before the robbery and away from the

house afterward. Hatfield objected on hearsay grounds, and the State responded

that the co-conspirator exception applied because they were statements made in

furtherance of a conspiracy. The court overruled the objections.

        A statement by a co-conspirator of a party during the course and in

furtherance of a conspiracy is not hearsay if offered against the party. ER




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No. 77512-0-1/41

801(d)(2)(v). The co-conspirator exception to the hearsay rule applies even if the

crime of conspiracy is not charged. State v. Dictado, 102 Wn.2d 277, 282-83,687

P.2d 172(1984).

       On this issue, Hatfield's argument is clear: the co-conspirator exception did

not apply because he was not charged with conspiracy. Washington case law

indicates otherwise. The court did not err in admitting the evidence.

       D. Dillenburg Testimony

       Finally, Hatfield contends that "[i]t is reversible error to permit the

prosecution to ask suggestive question[s] to the defendant's accomplice to

provoke the accomplice to claim his privilege against self-incrimination in the

presence of the jury."      Although Hatfield clearly takes exception to the

circumstances surrounding Dillenburg's refusal to testify, the grounds for his

objection are unclear. He mentions misconduct, the right to confrontation, the right

to due process, and ER 613 as possible bases for reversal.

       Hatfield's contention that "the prosecutor knew that Dillenburg probably was

not going to testify [because] Dillenburg wanted to renegotiate the deal that he

struck with the State" and called him as a witness to provoke him to claim his

privilege against self-incrimination in the presence of the jury is not supported by

the record before this court. If Hatfield "wishes a reviewing court to consider

matters outside the record, a personal restraint petition is the appropriate vehicle

for bringing those matters before the court." McFarland, 127 Wn.2d at 338.




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No. 77512-0-1/42

       Because Hatfield does not adequately inform the court of the alleged errors

stemming from Dillenburg's refusal to testify, we decline to consider this issue. See

RAP 10.10(c).

       Affirmed.




WE CONCUR:




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