                                                                       FILED
                                                                    MARCH 24, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )         No. 36094-6-III
                                               )
                     Respondent,               )
                                               )
       v.                                      )         UNPUBLISHED OPINION
                                               )
AARON T. MACK,                                 )
                                               )
                     Appellant.                )

       P ENNELL, C.J. — A jury convicted Aaron Mack of unlawful possession of a

controlled substance (heroin). On appeal, Mr. Mack argues his case should have been

dismissed due to late disclosure of evidence. He also argues the trial court erroneously

imposed legal financial obligations (LFOs) at sentencing. We affirm Mr. Mack’s conviction

and remand to strike the LFOs pursuant to recent changes in Washington law.

                                          FACTS

       When Washington State Patrol troopers arrested Aaron Mack, they seized “a balled

up piece of plastic containing brown residue[,] . . . two pen tubes that were burnt and some

pieces of tin foil.” Clerk’s Papers at 75. The troopers suspected the brown residue was
No. 36094-6-III
State v. Mack


heroin, but Mr. Mack claimed it was THC 1 oil and that the pen tubes were used for smoking

THC. At first, the State tested only the residue from the piece of plastic; this test confirmed

the presence of heroin. Mr. Mack was charged with unlawful possession of heroin.

       About 10 days before trial, the deputy prosecuting attorney who had been handling

Mr. Mack’s case left the office for new employment. A new prosecutor received the case.

The new prosecutor reviewed the file and questioned why all items seized from Mr. Mack

had not been tested. The crime lab informed the prosecutor this was not its policy. The

prosecutor disagreed with this approach and directed the laboratory to test the remaining

items. The report came back indicating one of the pen tubes seized from Mr. Mack was

examined. It tested positive for heroin. 2

       The State disclosed the new test results immediately upon receipt, which was the day

before trial. On the day of trial, after the jury was selected and sworn, Mr. Mack notified the

court of the new test result and asked that the evidence be excluded. Mr. Mack argued the

new evidence was prejudicial because it undercut his theory of unwitting possession. He

claimed that had he received the pen tube result on an earlier date, he would have had a




       1 Tetrahydrocannabinol, the psychoactive constituent of marijuana.
       2 Although the prosecutor had asked the crime lab to test all items, the lab technician
only tested one of the pen tubes, as well as a piece of foil.

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No. 36094-6-III
State v. Mack


stronger basis for requesting independent testing of the State’s evidence. 3 He also may have

had a new perspective on plea negotiations.

       The trial court declined to exclude the newly disclosed test result. As a remedy for

the late disclosure, the court decided to admit Mr. Mack’s self-serving hearsay statement

that he used the pen tubes to smoke THC. The State also agreed to stipulate that the untested

pen tube could have been used for THC. As for the issue of plea negotiations, the court

expressed a willingness to give the parties time to engage in negotiations. Neither side took

the court up on this offer.

       The case proceeded to trial and the jury convicted Mr. Mack as charged.

       At sentencing, Mr. Mack’s attorney reiterated his concerns regarding the late test

result and the purported lost opportunity for plea negotiations. According to defense

counsel, had the second test result been disclosed earlier, the parties likely would have

engaged in early negotiations, resulting in an agreement for no jail time. The trial court

expressed skepticism, noting the parties did not pursue the court’s offer to take a recess

from trial to allow for plea negotiations. The court went on to sentence Mr. Mack to four

months’ custody, and imposed a $200 criminal filing fee and $100 DNA4 collection fee.

       Shortly after sentencing, Mr. Mack moved for a new trial, again arguing he had been


       3   A previous motion for independent testing was denied.
       4   Deoxyribonucleic acid.

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No. 36094-6-III
State v. Mack


prejudiced by the State’s late test result. The prejudice argument focused solely on Mr.

Mack’s reduced ability to obtain a favorable plea agreement. The trial court again disagreed

with Mr. Mack’s claim of prejudice. Nevertheless, the court ordered Mr. Mack’s sentence

lowered from four months’ incarceration to three. 5

       Mr. Mack appeals, arguing the trial court (1) abused its discretion by failing to

exclude evidence of the late test results, and (2) erroneously imposed $300 in LFOs.

                                        ANALYSIS

Late disclosure of discovery

       Under CrR 4.7(a)(1)(iv) a prosecutor is required to disclose expert reports to the

defense by the time of a pretrial omnibus hearing. The failure to abide by discovery

obligations set by CrR 4.7 can constitute prosecutorial misconduct, even in the absence of

intentional wrongdoing or bad faith. State v. Salgado-Mendoza, 189 Wn.2d 420, 429-31,

403 P.3d 45 (2017). The trial court has broad discretion to regulate discovery and rectify

violations. State v. Hutchinson, 135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998). Exclusion

of evidence and dismissal of charges are possible remedies for discovery violations. Id.;

Salgado-Mendoza, 189 Wn.2d at 428. But lesser sanctions should be imposed if adequate

to address issues of prejudice. Salgado-Mendoza, 189 Wn.2d at 431.



       5   Mr. Mack’s sentencing range was zero to six months.

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No. 36094-6-III
State v. Mack


       As a preliminary matter, it is doubtful the late disclosure in this case constituted

misconduct. The prosecutor was the opposite of dilatory and he never withheld anything

from the defense. As a newly-assigned attorney, the prosecutor simply saw Mr. Mack’s case

in a different light than previous counsel. Particularly given Mr. Mack’s claim that he

consumed THC, not heroin, it was not unreasonable for the prosecutor to continue

examining Mr. Mack’s case. Had additional testing revealed the presence of THC, the

defense case would have been bolstered and chances of acquittal increased.

       In addition, regardless of misconduct, the trial court adequately exercised its

discretion in handling Mr. Mack’s discovery complaint. The new test results were limited to

one item of evidence and did not eliminate Mr. Mack’s theories of unwitting possession and

THC consumption. Mr. Mack fails to demonstrate how the new test results would have

strengthened his arguments for independent testing. And the slight prejudice to Mr. Mack’s

case from the new test information was sufficiently addressed by the court’s evidentiary

rulings. In addition, although the relevant prejudice inquiry goes to a defendant’s right to a

fair trial, not plea negotiations, the trial court further reduced any harm to Mr. Mack by

reducing his sentence.

LFOs

       As the parties agree, retroactive changes to Washington’s LFO laws require striking

Mr. Mack’s $200 criminal filing fee on the basis of indigence and the $100 DNA

                                               5
No. 36094-6-III
State v. Mack


collection fee on the basis of prior collection. RCW 10.01.160(3); RCW 36.18.020(2)(h);

RCW 43.43.7541.

                                     CONCLUSION

       Mr. Mack’s conviction is affirmed. This matter is remanded with instructions to

strike the $200 criminal filing fee and $100 DNA collection fee from the judgment and

sentence.

       A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           _________________________________
                                           Pennell, C.J.

WE CONCUR:



______________________________
Korsmo, J.



______________________________
Lawrence-Berrey, J.




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