                                                                          FILED 

                                                                       March 10,2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DMSION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 31670-0-III
                      Respondent,            )
                                             )
      v.                                     )
                                             )
ISIDRO LICON,                                )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )

      FEARING, J. - Isidro Licon appeals his convictions for two counts of second

degree assault and one count of second degree unlawful possession of a fIreann. He

argues that the trial court erroneously admitted gang evidence, erroneously admitted

testimonial hearsay, and improperly refused a material witness subpoena. He also argues

the trial court erroneously imposed legal fmancial obligations (LFOs) and imposed

community custody conditions on him unrelated to his convictions. We agree that the

trial court erroneously admitted testimonial hearsay, but reject Licon's other arguments

attacking his convictions. We hold the testimonial hearsay to be hannless error and
                                                                         ,­
affIrm Licon's three convictions. We decline to address Isidro Licon's assignment of

error regarding the entry of legal fInancial obligations, and we afftrm his community

custody conditions.
No. 31670-0-111
State v. Licon


                                        FACTS

      Sylvia Guerra and her daughter Selena Cortez are the victims of Isidro Licon's

assaults. Guerra, Cortez, Guerra's fiance Jaime Gutierrez, and Gutierrez's mother lived

together in an apartment in Pasco. Isidro Licon lived one block from the Gutierrez home.

Guerra spent time in jail, during which time Gutierrez's youngest brother Gumarro

(Gooma) occupied her room. Guerra was released from jail on February 6, 2012.

Because Guerra paid rent and Gooma paid no rent, Jaime Gutierrez ousted his brother

from the home to allow the return of Guerra.

      Isidro Licon and his acquaintances, Guillermo Tapia, Edgar Arroyos, Steven

Morfin, and Jaime Gutierrez are all members of the Florencia 13 street gang. Sylvia

Guerra was a member of the Mexican Pride Surenos gang, but cut ties with the gang four

years earlier. Florencia 13 and Mexican Pride Surenos were once rival gangs. According

to Guerra, Licon and she were friends who attended the same barbecues and other

gatherings. According to Licon, Guerra and he were more than friends, and she sent him

risque text messages.

      Witnesses, victims, and perpetrators referred to each other by gang monikers:

Isidro Licon is "Traviezo," Report of Proceedings (RP) at 1121; Guillermo Tapia is



       1 Unless  otherwise noted, RP refers to the Report of Proceedings from Isidro
Licon's trial, including, January 2,2013, January 3, 2013, January 4, 2013, January 8,
2013, January 9, 2013 and January 10,2013.

                                               2 /
No. 31670-0-III
State v. Licon


"Habit," RP at 112; Edgar Arroyos is "Nutcase," RP at 110, 116; Steven Morfin is

"Smokes," RP at 110; Jaime Gutierrez is "Smurf," RP at 186; and Sylvia Guerra is

"Nacoe," or "Mousie." RP at 379.

      On February 10,2012, Guillermo Tapia drove himself and Isidro Licon around

town. Tapia and Licon encountered Gooma Gutierrez, who informed them that he was

no longer welcome at his brother's residence.

      On the same day, Sylvia Guerra, Selena Cortez, and Jaime Gutierrez lingered at

their apartment. Guerra arose to take a shower; while Cortez applied her makeup. Edgar

Arroyos and Steven Morfin arrived at the apartment. Guerra afforded Arroyos and

Morfin entry to the home. Guerra called Gutierrez, so he could speak to them while she

showered. Arroyos sat on a couch, while playing with a gun. Guerra was not alarmed,

however, because gang members routinely carry guns. Jaime Gutierrez asked Sylvia

Guerra to leave the home to purchase beer.

       Sylvia Guerra thought it odd that Jaime Gutierrez asked her to purchase beer, yet

Gutierrez's look told her she should leave. Guerra went toward her room to retrieve

shoes, when Isidro Licon and Guillermo Tapia approached the home. Guerra then "knew

something was up." RP at 110.

      According to Sylvia Guerra, Isidro Licon rushed into the house with a gun. Licon

lifted his shirt to show Jaime Gutierrez a pistol on his waistband. Licon yelled and

argued with Gutierrez. Guerra first wanted to remove herself from an internal squabble

                                             3

No. 31670-0-III
State v. Licon


among Florencia gang members. She continued to walk to her room when Licon called

her a "bitch." RP at 113. Isidro Licon waved his gun and complained to Jaime Gutierrez

for removing Gutierrez's brother from the home for the "bitch." RP at 113.

       Sylvia Guerra responded to Isidro Licon's importuning. Guerra yelled at Licon:

"don't call me a bitch unless you fuck me." RP at 153. Guerra's daughter Selena Cortez

joined the argument and told Licon to stop yelling at her mother. According to Guerra

and Cortez, Licon pushed Guerra aside, grabbed Cortez, and threw Cortez to the ground.

Guerra lunged at Licon. Licon pushed Guerra to the side and Edgar Arroyos and Steven

Morfin jumped on top of Guerra.

       According to Sylvia Guerra, Selena Cortez armed herself with a kitchen knife.

Isidro Licon and Cortez ran at each other and Licon wrestled Cortez onto the couch.

Sylvia Guerra instructed Licon to free her daughter, while Licon told Guerra to instruct

her daughter to let go of the knife. When Guerra did not respond, Licon pistol whipped

Cortez.

       According to Sylvia Guerra, she grew angry and threw Steven Morfin and Edgar

Arroyos to one side. Isidro Licon yelled to Arroyos to "shoot the bitch." RP at 116.

Arroyos did not know how to shoot a gun so he sideswiped Guerra with the gun.

       Isidro Licon tells a different story. According to Licon, he knocked before

entering Jaime Gutierrez's home. He shook hands with those inside. Licon asked

Gutierrez: where is your brother? Gutierrez answered that Gooma is at his aunt's house.

                                            4

No. 31670-0-II1
State v. Licon


Licon asked for a glass of water, and Gutierrez granted the request. Licon walked into

the kitchen, retrieved a glass of water, returned to the front room, and placed the glass on

a table.

       Isidro Licon testified at trial:

              As I set it on the table Mousie, Nacoe [Sylvia Guerra] said, I can't
       get a hug. You can't say hello to me. I asked how come Gumarro isn't
       here. We referred to him as Gooma. Nacoe says right away that is none of
       your business. I say, can't you see two grown men are talking.

              Mousie [Sylvia Guerra] is just rambling about something.· Jaime
       says something to her and they are rambling on to each other. Then I hear
       Jaime say well he is just asking a question. Then she again says, well, it's
       none of his fucking business. I look over and say, are you still on the same
       subject. It was over, five minutes ago. She starts getting loud. I'm like,
       whatever. I tell them should we ask Guillermo if he wants to give us a ride.
       Then by then she gets up and starts basically barking at me like a dog, not
       in actual bark bark mode but starts yelling. You can see spit coming out of
       her mouth.

               After she kept on, I was like just shut the fuck up, bitch, shut up and
       drop it.

             I looked back and here comes Selena. She is coming directly at me.
       She automatically assumes we are waiting-she automatically wants to
       come up to me, don't be talking to my fucking mom like that.

RP at 419-22.

       According to Isidro Licon, without provocation, Selena Cortez went to the kitchen,

armed herself with a knife, and attacked him. Licon testified:

              Well, as she is coming like this I see Arroyos, which is close to the
       kitchen, and stand up and reach· over and grabbed her forearm. She
       automatically turns around real fast like that. As soon as she did that, she

                                              5

No. 31670-0-111
State v. Licon


      didn't have the knife up, she had it like this. When she turned around, she
      kind of pulled her ann lip so she kind of turned around and I jumped back.
      So I jumped back over the table and grabbed her to where her hand was
      lower but I had her kind of like here. I grabbed her, went up-went to the
      couch and body slammed her into the couch.

             I said we need to bounce. We need to leave. And I'm like I'm
      going to let her go and she will get up so let's go. Arroyos is close to the
      door so he walks out first and Morfin is right behind him and then I get off
      of her and I say we are working our way onto the couch where the
      cushion[s] are sliding off. You know, change on the back of the couch. I
      have her like this. I stopped, pulled her fingers off, and grabbed her. I
      pushed off ofher to get up myself. Once I do that, I didn't get my footing·
      right and I stumbled. I got [m]y balance on the dresser close to the door.
      The door is already opened because she is exiting. I reach for the door,
      Selena is already on her way up, coming towards me, and I punch her in the
      face.

RP at 424,428-29.

       Isidro Licon insisted that he acted in self-defense when he struck Selena Cortez.

He denied attacking Sylvia Guerra.

      At trial, Isidro Licon agreed to a prior conviction that precluded him from carrying

a fireann. He testified that he no longer carried a gun. Nevertheless, neither side

specifically questioned Licon ifhe carried a gun to Jaime Gutierrez's apartment on

February 10, 2012.

                                      PROCEDURE

       The State of Washington charged Isidro Licon with three crimes: second degree

assault against Sylvia Guerra; second degree assault against Selena Cortez; and unlawful

possession of a firearm. For the two assault charges, the State further alleged firearm and

                                             6

No. 31670-0-III
State v. Licon


gang sentence enhancements. To fulfill the gang enhancement statute, the State alleged

that Licon assaulted Guerra and Cortez to obtain or maintain his membership or to

advance his position in the "hierarchy of an organization, association, or identifiable

group"; or "to directly or indirectly cause any benefit, aggrandizement, gain, profit, or

other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its

reputation, influence, or membership." RCW 9.94A.535(3)(s), (aa); Clerk's Papers (CP)

at 207-08.

       Before trial, Isidro Licon moved in limine to exclude all gang evidence. Licon

argued that the sole impetus for the altercation was Sylvia Guerra's removing Jaime

Gutierrez; s brother from the apartment. The State argued that Licon retaliated against

Guerra because she was a female member of a rival gang who disrespected him. The trial

court denied Licon's motion, ruling the evidence conditionally relevant, on the ground

that the gang testimony showed motive or intent for the crime and explained the

interactions of the parties. The trial court also deemed the relevance outweighed the

prejudicial impact of the evidence.

       During trial, the trial court admitted substantial gang evidence over Isidro Licon's

continuing objection. Pasco Police Officer Michelle Goenen testified that Sylvia Guerra

informed her that the reason for the altercation was Licon's link to the Florencia 13 gang

and Guerra's connection with the rival Mexican Pride Surenos gang. Sylvia Guerra

testified that Licon was a member ofFlorencia 13, arid members of that gang tried to

                                             7

--------




    No. 31670-0-III
    State v. Licon


    silence her by threatening her and her family. The court admitted three photographs that,

    according to Pasco Detective Justin Greenhalgh, showed Edgar Arroyos' gang affiliation.

           At trial, the State called witness David Reardon, a crime analyst and gang expert

    with the City of Pasco Police Department. Reardon explained that the purpose of a gang

    is to establish a territory or monopoly, in which the gang sells drugs, through 'violence

    and intimidation. Fights can be the result of one gang interfering in another gang's area.

    David Reardon indicated that Isidro Licon had identified himself to law enforcement as a

    member of the Florencia 13 gang.

           At trial, Officer David Reardon identified Sylvia Guerra as a member of the

    Mexican Pride Surenos gang. According to Reardon, Florencia and Mexican Pride

    Surenos are allied, not rival, gangs. Last, Reardon opined that the impetus for the

    assaults was gang-related. Sylvia Guerra insulted Licon and therefore Licon had to

    retaliate. According to Reardon, Guerra being a female and belonging to a different gang

    hastened the need for retaliation.

           Neither Sylvia Guerra or Selena Cortez believed the incident to be gang-related.

    According to Guerra, she, contrary to Goenen's testimony, told Officer Michelle Goenen,

    before trial, that Licon got into an argument with her fiance Jaime Gutierrez over

    Gutierrez kicking out his brother "over a dumb incident which escalated." RP at 107.

           Serena Cortez previously witnessed Isidro Licon make sexual advances toward her

    mother. Cortez testified at trial that Licon's romantic obsession with Guerra explained

                                                  8

No. 31670-0-III
State v. Licon


why he went to the apartment on February 10 and an argument ensued.

       During trial, the State called Jaime Gutierrez as a witness. Defense counsel

objected to Gutierrez testifying:

                [DEFENSE COUNSEL]: Understanding that Jaime Gutierrez is
       there [sic] next witness, who has not beLen] made available to us to speak
       with. .., [O]ur understanding is he will take the Fifth. If it's anything
       otherwise, we should be entitled to interview Mr. Gutierrez.
                [THE STATE]: He has been sitting in jail for the last three weeks.
       If she [defense counsel] wanted to talk to her [him] she could have.
                [DEFENSE COUNSEL]: We've attempted to and his own attorney
       said he hasn't talked to him and earlier today he said he was going to take
       the Fifth. If it's anything different then we need to talk if he is going to
       testify.

RP at 184-85. The trial court ruled: "We will find out what he is going to say." RP at

185.

       Despite assuming the witness stand, Jaime Gutierrez refused to swear an oath to

testify truthfully, stating: "I have nothing to say." RP at 185. The State asked Gutierrez

questions anyway. Gutierrez testified that he belongs to the Florencia gang, that Sylvia

Guerra "is [his] girl," and that he was with Guerra on February 10,2012. When asked if

he recalled an incident involving Guerra and Isidro Licon, Gutierrez responded: "I don't

recall." RP at 187. Gutierrez did not recall whether Licon went by the nickname

Traviezo, whether Licon also belonged to Florencia, or whether police responded to his

residence on February 10,2012. Gutierrez's counsel advised him notto testify and to

invoke the right to remain silent. The State continued to examine Gutierrez, who refused



                                             9

No. 31670-0-III
State v. Licon


to answer. After repeatedly answering "I don't recall" to questions, Gutierrez claimed a

bad memory due to drug abuse. RP at 192.

       The State of Washington later called Pasco Police Officer Eric Fox as a witness.

Fox responded to the apartment on February 10,2012, when and where he spoke with

Jaime Gutierrez. The State asked Fox to repeat what Gutierrez said to him about Isidro

Licon. Licon objected on the ground of hearsay. The State argued that Officer Fox's

answer to the question was admissible as a prior inconsistent statement. Isidro Licon

argued the testimony was not admissible as a prior inconsistent statement under ER 613

because Gutierrez did not testify, and therefore was not available to question regarding

the statements. The trial court overruled the objection.

       Officer Eric Fox testified that Jaime Gutierrez told him that Isidro Licon was

present at his apartment on February 10 and Licon carried a firearm. The State also

asked Officer Fox what Gutierrez told him about why the incident occurred:

             Q. [THE STATE]: Now can you give the complete statement as to
       what Mr. Gutierrez said why this offense occurred?
             A. [OFFICER FOX]: That he was in a relationship with an MPS or
       Mexican Pride Surenos gang member, which was S[y]lvia Guerra.

RP (Jan. 7,2013) at 45.

       Isidro Licon moved for a mistrial, arguing that Officer Fox's testimony was

violative ofER 613 and Licon's rights under the confrontation clause. The trial court




                                             10 

No. 31670-0-111
State v. Licon


denied the motion for a mistrial. The following day, Isidro Licon, through an agent,

served a subpoena, on Jaime Gutierrez's mother, for Gutierrez to testify at trial.

       Isidro Licon called Guillermo Tapia as a witness. Tapia's testimony supported

Licon's version of the story. Isidro Licon asked Tapia whether he had discussed this case

with Jaime Gutierrez. Licon represented to the court that Gutierrez told Tapia that he

planned to take the Fifth Amendment and he was not going to lie for Guerra any longer.

Licon sought to use Tapia's testimony of Gutierrez's statement to impeach Sylvia Guerra.

The State objected:

               [THE STATE]: Objection. 

               THE COURT: Sustained. 

               [DEFENSE COUNSEL]: This goes to impeachment, Your Honor. 

               [THE STATE]: Of what? 

               [DEFENSE COUNSEL]: It was allowed in by Officer Fox. We 

       should allow Mr. Gutierrez to say what was said to him about remaining
       silent.
               THE COURT: Sustained.

RP at 384. Tapia testified that Jaime Gutierrez appeared reluctant to testify, but the court

did not admit Gutierrez's out-of-court statement.

       A day later, Isidro Licon tried to call Jaime Gutierrez to testify at trial:

              THE COURT: Your next witness. 

              [DEFENSE COUNSEL]: He is nowhere around, Your Honor. 

       [Jaime Gutierrez] was served with a subpoena. 

              [THE STATE]: It was released by the Court. 

              THE COURT: So. 

              [DEFENSE COUNSEL]: .May we approach. 

       (Side bar had outside hearing ofjury)



                                              11 

No. 3 I 670-0-III
State v. Licon


                [DEFENSE COUNSEL]: I know I would anger the Court if I asked
       for a material witness warrant. I know we can get this done. That is the
       only way we can get that impeachment evidence through Mr. Tapia is ifI
       get him here.
                THE COURT: I'm not inclined to grant a material witness warrant
       at this junction of this case. I understand if it was probably more relevant I
       might do it. Ifhe was one of your primary witnesses that hadn't come. I
       think we can see if we can't get this done. Ifhe shows up before the State's
       finished I will maybe let you bring him on.
                [DEFENSE COUNSEL]: I should put on the record I would have
       taken care of this in the beginning when he was on the witness stand, Your
       Honor, had I known but all of this information didn't come available to us
       until Friday when I spoke to Ms. Cortez then I had to track Mr. Tapia
       down. Luckily he was in the jail and even then it didn't become available
       because I didn't ask him if he had any conversation with Mr. Gutierrez.
       Apparently it must have happened while they were in court recently. That
       was something that was asked in the interview with Mr. Hultgrenn and
       Detective Greenhalgh. That's the only reason it wasn't done when it
       should have been done.
                [THE STATE]: I will put on the record Mr. Guillermo Tapia Torrez
       he has been in jail and available. She could have interviewed him at any
       time. It's always been known he was the driver.
                THE COURT: We will go ahead. 

                (Following had in open court within hearing ofjury) 

                [DEFENSE COUNSEL]: Your Honor, based on Mr. Gutierrez not 

       showing up, we rest and reserve if he does show up before the case is
       finished.
                THE COURT: Thank you, Ms. Rodriguez.

RP at 466-468. Jaime Gutierrez did not later appear at trial.

       After Isidro Licon rested his case, the State called Pasco Police Detective Kirk

Nebeker in rebuttal. Over defense counsel's objection, Nebeker testified to the structure

and rules of the Florencia gang, and that Licon was an active member. He further

declared:


                                             12 

No. 31670-0-III
State v. Licon


              Q What happens if you are breaking these rules?
              A It's called getting checked or sometimes they say putting a green
       light on the person who broke the rule. Usually they get disciplined by
       their own friends in the gang whether they get beat up or it could be                      i
                                                                                                  i
       determined as a gang in one of their meetings they will get together and
       come up with how they would discipline that particular person depending
       on the situation.                                                                      i

RP at 470-71.                                                                                 I
                                                                                              j

       The trial court instructed the jury that "[a] person commits the crime of assault in   I
                                                                                              I
the second degree when he or she assaults another with a deadly weapon." CP at 98. The

court further defined assault as follows:
                                                                                              I
               An assault is an intentional touching or striking or cutting of another
       person, with unlawful force, that is harmful or offensive regardless of                I
                                                                                              I
       whether any physical injury is done to the person. A touching or striking is
       offensive if the touching or striking would offend an ordinary person who is
       not unduly sensitive.
                                                                                              ~
               An assault is also an act, with unlawful force, done with intent to
       inflict bodily injury upon another, tending but failing to accomplish it and
       accompanied with the apparent present ability to inflict the bodily injury if
       not prevented. It is not necessary that bodily injury be inflicted.
               An assault is also an act, with unlawful force, 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.

CP at 97. The trial court also instructed the jury on self-defense. During the State's

closing arguments, it did not mention Jaime Gutierrez's remarks to Officer Eric Fox.

       The jury found Isidro Licon guilty on all three counts: two counts of assault in the

second degree, and unlawful possession of a firearm. The jury found by special verdicts




                                             13 

No. 31670-0-III
State v. Licon


that Licon employed a fireann in committing each assault. Also by special verdicts, the

jury found that the gang enhancements under RCW 9.94A.535 did not apply.

       The trial court sentenced Isidro Licon to 86 months total confinement and

community custody of 18 months. The trial court found that "the defendant is an adult

and is not disabled and therefore has the ability or likely future ability to pay the legal

financial obligations imposed herein. RCW 9.94A.753." CP at 29. During the

sentencing hearing, the trial court did not inquire into Licon's ability to pay legal

financial obligations before imposing $643 in discretionary costs. Nor did Licon object

to the imposition of the costs.

       The trial court also imposed the following terms of community custody:

       [X]    No contact with known gang members.
       [X]    No possession of gang paraphernalia including clothing, insignia,
              medallions, etc.
       [X]    Notify the community corrections officer of any vehicles owned or
              regularly driven by defendant.

CP at 35.

                                  LA W AND ANALYSIS

       On appeal, Isidro Licon contends (1) the trial court erred when it admitted gang

evidence, (2) the trial court erred when it allowed Officer Eric Fox to testify to hearsay

statements from Jaime Gutierrez, thus violating ER 613 and Licon's rightto

confrontation, (3) the trial court erred when it denied Licon's motion to issue a material

witness warrant for Jaime Gutierrez, (4) cumulative error denied Isidro Licon's right to a

                                              14 

No. 31670-0-111
State v. Licon


fair trial, (5) the trial court failed to consider Licon's present or future ability to pay legal

financial obligations before imposing discretionary costs, and (6) the trial court erred

when it imposed three community custody conditions unrelated to Licon's convictions.

       Issue 1: Did the trial court err by admitting gang evidence?

       Answer 1: No.

       Isidro Licon challenges the admission of testimony of Sylvia Guerra regarding

Isidro Licon's gang affiliation and threats she and her family received; three photos of

Edgar Arroyos showing his gang affiliation; the gang expert testimony of Officer

Reardon; and the gang expert testimony of Detective Nebeker. Licon emphasizes that

neither Sylvia Guerra nor Selena Cortez, or the jury, believed the altercation to be gang-

related. Licon argues the "large volumes of gang evidence" led the jury to conclude that

he is a bad person. Br. of Appellant at 16-17. He does not challenge the testimony of the

Pasco police officers as impermissible opinion testimony.

       The state of Washington argues that the gang evidence is relevant because Isidro

Licon responded with extreme violence to perceived insults from Sylvia Guerra and in

conformity to the gang code, and a violent response to a small offense served to

aggrandize both Licon and the gang in reputation and influence. According to the State,

Licon also sought to improve his standing within the Florencia 13 gang to punish a fellow

member, Jaime Gutierrez, for prioritizing Sylvia Guerra over- his brother. Detective Kirk

Nebeker explained this motive, when he characterized the conduct as "getting checked or

                                               15 

------------   .




       No. 31670-0-III
       State v. Licon


       sometimes they say putting a green light on the person who broke the rule." RP at 470­

       71.

               The trial court reasoned that the admitted photographs helped explain the

       interactions of the parties. The gang evidence elucidated why three other Florencia 13

       members accompanied Isidro Licon to Guerra's home that day and acted in concert.

       According to the trial court, the evidence illuminated why Licon reacted vehemently

       against a female member of a different gang. The evidence was also admissible because

       the State sought gang enhancements. We agree.

               Like membership in a church, social club, or community organization, affiliation

       with a gang is protected by our First Amendment right of association. State v. Scott, 151

       Wn. App. 520, 526,213 P.3d 71 (2009). Washington courts consistently recognize the

       prejudicial nature of gang evidence. State v. Yarbrough, 151 Wn. App. 66, 81,210 P.3d

        1029 (2009); Scott, 151 Wn. App. at 526. ER 404(b), for "other crimes, wrongs," applies

       to the admission of gang evidence. State v. Yarbrough, 151 Wn. App. at 81. ER 404(b)

       provides:

                      Evidence of other crimes, wrongs, or acts is not admissible to prove
               the character of a person in order to show action in conformity therewith. It
               may, however, be admissible for other purposes, such as proof of motive,
               opportunity, intent, preparation, plan, knowledge, identity, or absence of
               mistake or accident.

               Despite ER 404, a trial court may admit gang affiliation evidence to establish the

       motive for a crime or to show that defendants acted in concert. State v. Embry, 171 Wn.

                                                    16
No. 31670-0-III
State v. Licon


App. 714, 732,287 P.3d 648 (2012), review denied, 177 Wn.2d 1005 (2013). The

testimony challenged on appeal showed motive, set the circumstances for the assaults,

and explained why others accompanied Isidro Licon to Jaime Gutierrez's home. The

testimony was needed to support the State's desire to impose gang enhancements in the

sentence.

       We review a trial court's evidentiary rulings under the abuse of discretion

standard. State v. Cronin, 142 Wn.2d 568, 585, 14 P.3d 752 (2000). A trial court abuses

its discretion when its decision is manifestly unreasonable or based on untenable grounds

or reasons. Yarbrough, 151 Wn. App. at 81. We conclude the trial court did not abuse its

discretion.

       By its special verdicts, the jury rejected the state of Washington's argument that

Isidro Licon assaulted Sylvia Guerra or Selena Cortez in order "to obtain or maintain his

or her membership or to advance his or her position in the hierarchy of an organization,

association, or identifiable group." CP at 81. Rejection of the State's theory, however,

does not retroactively render the evidence irrelevant. In the trial of a case, any

circumstance is relevant which reasonably tends to establish the theory of the party

offering it. Rothman v. N. Am. Life & Cas. Co., 7 Wn. App. 453, 456,500 P.2d 1288,

(1972).

       ISSUE 2: Did the trial court err when allowing Officer Eric Fox to testify that

Jaime Gutierrez told him that Isidro Licon was present at the apartment, Licon carried a

                                             17 

No. 31670-0-III
State v. Licon


gun, and Licon assaulted Sylvia Guerra because of her gang membership?

       ANSWER 2: Yes.

       Isidro Licon contends the trial court erred when it allowed Officer Eric Fox to

testifY to statements made by Jaime Gutierrez to the officer. The State argues Officer

Fox's testimony is admissible under ER 613 to contradict Gutierrez's inconsistent trial

testimony. Licon argues that ER 613 did not sanction the hearsay and the hearsay

evidence violated his right to confrontation.

       ER 613 allows testimony of an extrinsic prior inconsistent statement of a witness,

under certain circumstances. Since Gutierrez gave no inconsistent statement on the

witness stand, we agree with Isidro Licon. Officer Eric Fox's testimony did not impeach

earlier testimony from Jaime Gutierrez. Gutierrez refused to swear an oath to testifY

truthfully, invoked his right to remain silent, and, when ordered to answer, claimed he

could not remember February 10,2012.

       "If the statement is offered for the purpose of showing that the witness's statement

on the stand cannot be trusted because he has changed his story, it is not hearsay."

ROBERT H. ARONSON AND MAUREEN A. HOWARD, THE LAW OF EVIDENCE IN

WASHINGTON, §10.05[2][c], at 10-10 (5th ed. 2013). In effect, the earlier inconsistent

statement is not offered to prove the truth, but rather to show that trial testimony is

unreliable. In general, a witness' prior statement is admissible for impeachment purposes

ifit is inconsistent with the witness' trial testimony. State v. Lavaris, 106 Wn.2d 340,

                                                18 

No. 31670-0-III
State v. Licon


344,721 P.2d 515 (1986); Sterlingv. Radford, 126 Wash. 372, 218 P. 205 (1923); Pilon

v. Lindley, 100 Wash. 340,170 P. 1022 (1918); 5B KARLB. TEGLAND, WASHINGTON

PRACTICE: EVIDENCE § 801.18, at 365-66 (5th ed. 2007).

          Generally, '" if the witness testifies at trial about an event but claims to have no

knowledge of a material detail, or no recollection of it, most courts pennit a prior

statement indicating knowledge of the detail to be used for impeachment.'" State v.

Newbern, 95 Wn. App. 277, 292, 975 P.2d 1041 (1999) (quoting 5A KARLB. TEGLAND,

WASHINGTON PRACTICE: EVIDENCE § 256, at 309 (3 d ed. 1989)) (emphasis added). If

the witness claims a total lack of memory and gives no substantive testimony on the

factual issue at hand, a prior statement by the witness is inadmissible regardless of

whether the lapse of memory is genuine because there is no testimony to impeach. State

v. Newbern, 95 Wn. App. at 292; 5B KARL B. TEGLAND, WASHINGTON PRACTICE:

EVIDENCE § 801.22, at 371 (5th ed. 2007). The purpose of using prior inconsistent

testimony to impeach is to allow an adverse party to show that the witness tells different

stories   ~t   different times. State v. Newbern, 95 Wn. App. at 293 (1999); 1 JOHN W.

STRONG, MCCORMICK ON EVIDENCE § 34, at 126-27 (5th ed. 1999). From this, the jury

may disbelieve the witness' trial testimony. Newbern, 95 Wn. App. at 293. If a witness

does not testify at trial about the incident, whether from lack of memory or another

reason, there is no testimony to impeach. Newbern, 95 Wn. App. at 293; TEGLAND, §

801.22, at 371.

                                                 19
No. 3 I 670-0-III
State v. Licon


        Two of this court's opinions resolve the question on appeal with different

reasoning but with a result favorable to Isidro Licon. In State v. Newbern, 95 Wn. App.

~77,   975 P.2d 1041 (1999), a jury convicted Sirrone Newbern of attempted murder in the

second degree. On appeal, Newbern claimed the trial court erred, in part, when admitting

hearsay evidence.

         Sirrone Newbern shot his girlfriend, Lakenya Jones, with a handgun while she

stood in front of her house talking on the telephone to her fonner boyfriend, AJ. The

next morning, Detective Bomkamp interviewed Jones at Madigan Hospital. She told the

detective that, before the shooting, she received a telephone call from a fonner boyfriend.

She said she was in her bedroom speaking on the phone when Newbern came in, told her

to hang up, and pointed a gun directly at her. She said she left the bedroom and walked

outside where she stood on the front step, still talking on her portable phone. Jones also

said that Newbern followed her outside and told her to get off the phone and that when

she replied, "No," he lifted the gun to shoulder height and pulled the trigger one time.

         In Newbern, Lakenya Jones testified at trial and acknowledged that she received a

telephone call from AJ. before the shooting. But at trial, Jones insisted that Newbern

had not told her to get off the phone, that Newbern was not jealous when she spoke to

AJ., that she did not see Newbern with a gun when she was outside, and that the shooting

was an accident. The State then impeached Jones with the statement she made to

Detective Bomkamp. Over Newbern's hearsay objection, Bomkamp testified about the

                                             20 

No. 31670~O-III
State v. Licon


Madigan Medical Hospital interview, saying that Jones told him that Newbern pointed

the gun at her twice in the space of about five minutes and shot her after she refused to

get off the telephone.

       On appeal, in Newbern, this court noted that the trial court admitted Lakenya

Jones' earlier descriptions of the incident as a prior inconsistent statement. Newbern

argued that it was error to admit Jones' Madigan statement because Jones testified that

she had no memory of making it. The court disagreed because, even if Jones claimed she

did not remember making the statement to the detective, she claimed a memory of the

event contrary to the Madigan statement. Thus, the trial court did not err in allowing the

State to use Jones' Madigan statement to impeach her trial testimony.

       In State v. Allen S., 98 Wn. App. 452,469, 989 P.2d 1222 (1999), this court

addressed the question: whether a party may impeach a person who claims at trial not to

remember anything relevant to the case. The answer given was no. S. was the father of

two sons, J. and B., both of whom accused S. of sexual assault. While S. awaited trial in

jail, Josh Spry, another prison inmate, asked to be interviewed by a sheriffs deputy, and

Deputy Charles Fuchser responded. Spry told Fuchser that he was willing to provide

information about S. so he could cut himself a better deal on charges pending against

him. Fuchser did not agree to a deal, but Spry nonetheless described jailhouse

conversations between himself and S. In those conversations, according to Spry, S.

admitted to getting high on crank and doing "some fucked up things to his children."

                                            21 

No. 31670-0-III
State v. Licon


State v. Allen s., 98 Wn. App. at 455. Perhaps because ofthe lack ofa deal, Spry denied,

when called to testify in S.'s trial, speaking to Fuscher. He further denied telling Fuscher

that S told him he abused his sons. The State then called Fuchser to testify. Fuscher told

the jury that Spry reported to him a conversation with S., during which S. admitted to

abusing his sons. The trial court gave a limiting instruction that testimony of Deputy

Charles Fuchser on the subject of Joshua Spry's testimony was allowed only for the

limited purpose of impeaching Joshua Spry, and the jury must not consider this evidence

for any other purpose.

       On appeal, in Allen s., this court held that the trial court erred by admitting,

through Fuchser's testimony, the out-of-court statements that Spry made to Fuchser. In a

law review style opinion, the Allen S. court observed that the State was a party entitled to

impeach Spry, but only if Spry's credibility was a fact of consequence to the action.

Spry's credibility was not a fact of consequence to the action, since he said nothing from

the witness stand that either party could have used for its truth to prove a fact of

consequence to the action. The court granted S. a new trial since Spry's jailhouse

statements to Fuchser was not harmless evidence. The State conceded the testimony was

harmful.

       Jaime Gutierrez told no story; thus, there was no testimony to impeach.

Gutierrez's credibility was not at issue, as he failed to say anything of consequence at

trial. He stated he recalled nothing about the incident. The only plausible purpose for

                                              22 

No. 31670-0-III
State v. Licon


Officer Fox's testimony was as substantive evidence of Isidro Licon's guilt. The State

does not argue for the applicability of an exception or exclusion to the rule against

hearsay, and none seems to apply. The testimony was inadmissible under Washington

evidence rules. To assess the scope of the error and determine which harmless error

analysis should apply, we reach Isidro Licon's assertion that the testimony's admission

violated his rights under the confrontation clause.

       ISSUE 3: Did Officer Fox's testimony about Jaime Gutierrez's statement violate

the confrontation clause?

       ANSWER: Yes.

       In addition to violating the hearsay rule, the testimony of Officer Eric Fox violated

the constitutional confrontation clause. This court reviews de novo "[a]n alleged

violation of the confrontation clause." State v. Jasper, 174 Wn.2d 96, 108,271 P.3d 876

(2012). Under the Sixth Amendment's confrontation clause, "[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses

against him." U.S. CONST. amend. VI. Even hearsay with an applicable exception

becomes inadmissible in violation of the clause if it is testimonial hearsay. Davis v.

Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Thus, we

must decide if Eric Fox's repeat of Jaime Gutierrez's statement constituted testimonial

hearsay.

       A declarant's out of court statement is testimonial if, in the absence of an ongoing

                                             23 

No. 31670-0-111
State v. Licon


emergency, "the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822. The

admission of testimonial hearsay statements of a witness who does not appear at a

criminal trial violates the confrontation clause of the Sixth Amendment unless (1) the

witness is unavailable to testify and (2) the defendant had a prior opportunity for cross-

examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004)~ State v. Beadle, 173 Wn.2d 97, 107,265 P.3d 863      (2011)~   5C KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE § 1300.8, at 498 (5th ed. 2007).

       Crawford, the leading United States Supreme Court decision on the subject, did

not comprehensively define "testimonial," but it provided some guidance to lower courts.

State v. Chambers, 134 Wn. App. 853,860, 142 PJd 668 (2006). Crawford's few

definitions of "testimonial" all contemplate formal statements given to police to help their

investigations or formal testimony in a court setting. See Crawford, 541 U.S. at 51-52.

Crawford specifically distinguished these formal statements from casual remarks.

Chambers, 134 Wn. App. at 862.

       In Chambers, our court summarized three nonexclusive definitions for

"testimonial" offered by Crawford:

              (1) ex parte in-court testimony or its functional equivalent, such as
       affidavits, custodial examinations, and prior testimony that the defendant
       was unable to cross-examine; (2) extrajudicial statements contained in
       formalized testimonial materials, such as affidavits, depositions, prior
       testimony, or confessions; and (3) statements made under circumstances

                                             24
No. 31670-0-111
State v. Licon


       that would lead an objective witness reasonably to believe that the
       statement would be available for use at a later trial.

Chambers, 134 Wn. App. at 860-61 (citing Crawford, 541 U.S. at 51-52). We find that

the third definition applies in this appeal. Under the circumstances of an interview by a

law enforcement officer, a reasonable witness would believe his or her statement would

further police investigations toward future criminal prosecutions and specifically that

such statements "would be available for use at a later trial." Chambers, 134 Wn. App. at

861. Stated differently, Jaime Gutierrez should have expected that his remarks to Officer

F ox would be used in a criminal trial.

       Since we conclude the hearsay on appeal is testimonial hearsay we must complete

the confrontational clause analysis. Because Jaime Gutierrez asserted his Fifth

Amendment rights, Gutierrez was not available to testify. A witness is unavailable ifhe

asserts the Fifth Amendment when called to testify at trial. State v. Roberts, 142 Wn.2d

471,491, 14 P.3d 713 (2000); State v. Edmondson, 43 Wn. App. 443, 447, 717 P.2d 784

(1986). Also, Isidro Licon had no prior opportunity to cross-examine Gutierrez. Thus,

the trial court admitted testimonial hearsay in violation of Licon's right to confront

witnesses against him.

       ISSUE 4: Whether the admission of Officer Fox's testimony about Jaime

Gutierrez's statement is harmless error?

       ANSWER 4: Yes.


                                             25
No. 31670 ...0-111
State v. Licon


       The denial of a defendant's constitutional right to cross-examine a witness does

not always mandate reversal, but may be found to be harmless error. Delaware v. Van

Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986);

People v. Flowers, 371 Ill. App. 3d 326,331,862 N.E.2d 1085, 308 Ill. Dec. 882 (2007).

A constitutional error is harmless if the appellate court is assured beyond a reasonable

doubt that the jury verdict is unattributable to the error. State v. Anderson, 171 Wn.2d

764, 770, 254 PJd 815 (2011). This court employs the overwhelming untainted evidence

test and looks to the untainted evidence to determine if it is so overwhelming that it

necessarily leads to a finding of guilt. Anderson, 171 Wn.2d at 770. A constitutional

error is harmless only if the reviewing court is convinced beyond a reasonable doubt that

any reasonable jury or trier of fact would reach the same result absent the error and where

the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. State

v. Burke, 163 Wn.2d 204, 222, 181 P.3d 1 (2008); State v. Benn, 161 Wn.2d 256, 266,

165 PJd 1232 (2007); State v. Thompson, 151 Wn.2d 793,808,92 PJd 228 (2004);

State v. Linehan, 147 Wn.2d 638, 643,56 PJd 542 (2002); State v. Brown, 140 Wn.2d

456,468-69,998 P.2d 321 (2000); State v. Aumick, 126 Wn.2d 422,430, 894 P.2d 1325

(1995); State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985). When the error is

not harmless, the defendant must have a new trial. State v. Fricks, 91 Wn.2d 391,397,

588 P.2d 1328 (1979).

        We conclude that the admission of Jaime Gutierrez'S out-of-court statement to

                                             26
No. 31670-0-III
State v. Licon


Officer Eric Fox was hannless for many reasons. First, the testimony was short lived and

not repeated by the State in closing arguments. Isidro Licon's testimony confinned the

truth of one of Gutierrez's remarks-that Licon was present at the Gutierrez home on

February 10. Licon did not directly contradict Jaime Gutierrez hearsay comment that

Licon carried a gun. Credible testimony established that Licon carried a gun. The jury

did not believe Gutierrez's third statement-that the assault was gang-related.

       A proper hannless error analysis requires an examination of the entire record by

the appellate court including a close examination of the permissible evidence on which

the jury could have legitimately relied, and in addition an even closer examination of the

impermissible evidence which might have possibly influenced the jury verdict. Corona

v. State, 64 So.3d 1232, 1243 (Fla. 2011). In detennining the import of inadmissible

evidence, a reviewing court should consider the frequency of the error; the importance of

the erroneously admitted evidence; the presence or absence of evidence corroborating or

contradicting the erroneously admitted evidence; whether the erroneously admitted

evidence duplicates untainted evidence; the nature of the defense; the nature of the

State's case; and the overall strength of the State's case. State v. Nelson, 2014 WI 70,

355 Wis. 2d 722,849 N.W.2d 317,327. Courts look to three factors to detennine

whether a trial irregularity warrants a new trial (1) the seriousness of the irregularity, (2)

whether the statement was cumulative of evidence properly admitted, and (3) whether the

irregularity could be cured by an instruction. State v. Perez-Valdez, 172 Wn.2d 808,818,

                                              27 

No. 31670~OwIII
State v. Licon


265 PJd 853 (2011); State v. Post, 118 Wn.2d 596,620, 826 P.2d 172 (1992).

      Admission of testimony that is otherwise excludable is not prejudicial error where

similar testimony was admitted earlier without objection. Ashley v. Hall, 138 Wn.2d 151,

159,978 P.2d 1055 (1999); State v.   Ramirez~Estevez,   164 Wn. App. 284, 293, 263 PJd

1257 (2011). When the same fact has been admitted in evidence before the jury, without

objection, such admitted evidence renders harmless the admission of the same evidence

over objection. Casey v. State, 246 Ga. App. 786, 790,542 S.E.2d 531 (2000). When the

improper evidence was merely cumulative, its admission was harmless. Smith v. State,

283 Ga. App. 722, 724, 642 S.E.2d 399 (2007).

       Some Washington cases are illustrative. In State v. Burke, 163 Wn.2d 204, 181

PJd 1 (2008), the State charged Justin Burke with rape of a child. Burke agreed he had

sex with the alleged victim, but testified she told him she was 16 years of age and that he

reasonably believed her. During trial, the State presented testimony from law

enforcement officers that Burke refused to speak with officers when interviewed by them.

Our high court considered the constitutional error to be harmful. A principal reason for

the ruling was the State's repeated references to Burke's silence had the effect of

undermining his credibility as a witness. In the case on appeal, Officer Eric Fox's

testimony of Jaime Gutierrez's statement was short lived. The State did not repeatedly

refer to Jaime Gutierrez's out of court remarks or mention the remarks at all in closing

arguments.

                                            28
No. 31670-0-111
State v. Licon


       In State v. Gu/oy, 104 Wn.2d 412, 705 P.2d 1182 (1985), as in the case on appeal,

the trial court erroneously admitted two out of court statements by a coconspirator that

implicated the defendants. At trial, the coconspirator refused to testify under the Fifth

Amendment. The jury convicted the defendants of aggravated first degree murder. The

Supreme Court acknowledged that the admission of the hearsay violated the defendants'

rights under the constitution's confrontation clause. Nevertheless, the court affirmed the

convictions on the ground the admission of evidence was harmless. The court noted the

overwhelming amount and credibility of the properly admitted evidence. The opinion did

not list what constituted the overwhelming evidence nor identify what constituted

credible evidence.

       In State v. Anderson, 171 Wn.2d764, 254 P.3d 815 (2011), the Supreme Court

addressed the admission of statements from a sexual assault clinic nurse concerning a

child's sexual molestation. The admission ofthe statements, although ''testimonial'' and

subject to the defendant's right of confrontation under the Sixth Amendment to the

United States Constitution, was harmless. The victim had told the nurse that defendant

rubbed his penis. On appeal, the State conceded that the nurse's recitation of the child's

statements was ''testimonial,'' but the court concluded that any error resulting from

admitting the testimony was harmless. The defendant had earlier admitted the

inappropriate touching to an officer. The victim also testified.

       In this appeal, the tainted evidence is the testimony of Officer Eric Fox that Jaime

                                             29 

No. 3 1670-0-III
State v. Licon


Gutierrez told him that Isidro Licon was present at his apartment on February 10 and

Licon carried a firearm. Officer Fox also testified that Gutierrez told him that the assault

occurred because he was in a relationship with a competing gang member. Removal of

this evidence does not unsettle the verdict.

       Isidro Licon admitted to being present at the apartment on February 10. Although

Gutierrez's statement to Officer Fox implied an assault occurred, the statement provided

no details of any assault committed by Licon. Although he claimed self-defense, Isidro

Licon also testified to a physical altercation with Cortez. Licon testified he shoved

Cortez and punched her in the face. The two struggled with a knife, an instrument

considered a deadly weapon. Licon testified that he did not carry a gun after he was

convicted of an earlier crime, but he did not deny possessing a gun at Jaime Gutierrez's·

home on February 10. Both Sylvia Guerra and Selena Cortez confirmed Licon carried a

gun.

       Isidro Licon may believe that, because his version and his witness' version of the

altercation differed from the versions of Sylvia Guerra and Selena Cortez, there was a

reasonable doubt as to his guilt. But numbering witnesses does nothing in determining

how a jury will rule.

       When determining the import of tainted evidence, other reviewing courts review

the record to determine what witnesses the jury considered as believable. Taylor v. State,

407 Md. 137,963 A.2d 197,214 (2009). Harmless error review looks to the basis on

                                               30 

 No. 31670-0-111 

 State v. Licon 



 which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that

 occurred without the error a guilty verdict would surely have been rendered, but, rather,

 whether the actual guilty verdict rendered was surely un attributable to the error. State v.

 Lavalleur, 289 Neb. 102, 853 N.W.2d 203, 215 (2014).

        Reviewing the decisions made by the jury in the case on appeal may conflict with

 the Washington rule that a court is to determine if any reasonable jury might acquit the

 defendant. But we find this Washington rule problematic. A jury is comprised of twelve

, independent thinking people with varying backgrounds and theorizing what an

 innumerable combination of twelve jurors might rule is difficult. No Washington

 Supreme Court decision has emphasized the need to consider all possible juries or

 addressed how the court of appeals ponders the possibilities emanating from many

 reasonable juries. We believe focusing on the particular jury who rendered the verdict on

 appeal to be more apt.

        Our trial jury must have determined Selena Cortez and Sylvia Guerra to be

 credible witnesses and Jaime Gutierrez, Guillermo Tapio and Isidro Licon to be less than

 credible witnesses. The jury accepted Cortez's and Guerra's version of the altercation

 and testimony that Licon attacked the two because of the removal of Gooma Gutierrez

 from the home, not because of any gang motive. Assuming a jury finding of the

 possession of a firearm was needed to establish assault with a deadly weapon, the jury




                                                31 

No. 31670-0-111
State v. Licon


would have agreed with Cortez and Guerra that Isidro Licon held a gun. This testimony

also established Gutierrez unlawfully possessed a gun.

       ISSUE 5: Did the trial court err by refusing to issue a material witness warrant

for Jaime Gutierrez?

       ANSWER 5: No.

       Under CrR 4.10, on motion, the court may issue a warrant for the arrest of a

material witness. The rule reads, in relevant part:

               (a) Warrant. On motion of the prosecuting attorney or the.
       defendant, the court may issue a warrant, subject to reasonable bail, for the
       arrest of a material witness. The warrant shall issue only on a showing, by
       affidavit or on the record in open court, that the testimony of the witness is
       material and that
               (1) The witness has refused to submit to a deposition ordered by the
       court pursuant to rule 4.6; or
               (2) The witness has refused to obey a lawfully issued subpoena; or
               (3) It may become impracticable to secure the presence of the
       witness by SUbpoena.

       A trial court's decision to grant or deny a motion for issuance of a material witness

warrant is reviewed for a manifest abuse of discretion. City ofBellevue v. Vigil, 66 Wn.

App. 891, 895, 833 P.2d 445 (1992). The proponent of the warrant carries the burden of

showing materiality. State v. Smith, 101 Wn.2d 36, 41,677 P.2d 100 (1984).

       We question whether Isidro Licon requested a warrant for Jaime Gutierrez's arrest

during trial. His counsel merely stated: "I know I would anger the Court if I asked for a

material witness warrant." RP at 466. We proceed as if Licon requested a warrant,



                                             32 

No. 3 1670-0-III
State v. Licon


nonetheless, because the trial court responded: "I'm not inclined to grant a material

witness warrant at this junction of this case. I understand if it was probably more

relevant I might do it. Ifhe was one of your primary witnesses that hadn't come." RP at

467.

       Isidro Licon claims that Jaime Gutierrez's presence was needed because Gutierrez

would have'testified that he no longer wanted to lie for Sylvia Guerra. The trial court sat

through the entire trial and was in a better position to weigh the importance, or lack

thereof, of such testimony. When issuing its ruling, the trial court had already observed

Gutierrez's demeanor on the stand and his refusal to answer questions under the Fifth

Amendment. We will not interfere in the trial court's determination that any such

testimony was unimportant.

       ISSUE 6: Did cumulative error deny Isidro Licon a fair trial?

       ANSWER 6: No.

       Under the cumulative error doctrine, a defendant may be entitled to a new trial

when the trial court's multiple errors combined to deny the defendant a fair trial. In re

Pers. Restrainto[Lord, 123 Wn.2d296, 332,868 P.2d 835 (1994). The defendant bears

the burden of proving an accumulation of error of sufficient magnitude to warrant a new

trial. Lord, 123 Wn.2d at 332; see, e.g., State v. Perrett, 86 Wn. App. 312, 323, 936 P.2d

426 (1997). A defendant is entitled to a fair trial but not a perfect one, for there are no




                                              33 

No. 31670-0-III
State v. Licon


perfect trials. Brown v. United States, 411 U.S. 223, 232, 93 S. Ct. 1565,361. Ed. 2d

208 (1973).

      We have already ruled that the court committed only one error that was harmless.

Therefore, we conclude there was no cumulative harmful error.

       ISSUE 7: Did the trial court err by imposing legal financial obligations?

      ANSWER 7: We decline to address this assignment oferror..

       Isidro Licon contends the trial court erred when it, (1) found he had the present or

future ability to pay LFOs, and (2) imposed $643 in discretionary LFOs without

considering his ability to pay. Courts may impose legal financial obligations, such as

court costs, DNA collection fees, and victim restitution, if a defendant has or will have

the financial ability to pay them. RCW 10.01.160(3); RCW 9.94A.760(2); State v. Curry,

118 Wn.2d 911, 914-16, 829 P .2d 166 (1992). The trial court need not make a formal

finding that the defendant has or will have the ability to pay. State v. Baldwin, 63 Wn.

App. 303, 312, 818 P.2d 1116 (1991). But where the court does make such a finding, the

record must support it. State v. Bertrand, 165 Wn. App. 393,403-05,267 P.3d 511·

(2011). This court reviews a trial court's determination of an offender's financial

resources and ability to pay for clear error. Bertrand, 165 Wn. App. at 404 n.13 (citing

Baldwin, 63 Wn. App. at 312).

       Isidro Licon did not object to the imposition ofLFOs at sentencing. Under RAP

2.5(a), this court need not address this issue for the first time on appeal. Until our

                                             34 

No. 31670-0-III
State v. Licon


Supreme Court decides otherwise, the rule established by each division of this court is

that a defendant may not challenge a determination regarding his or her ability to pay

LFOs for the first time on appeal. State v. Duncan, 180 Wn. App. 245,252,327 P.3d 699

(2014) (citing RAP 2.5(a) and State v. Kuster, 175 Wn. App. 420, 425, 306 P.3d 1022

(2013)); State v. Calvin, 176 Wn. App. 1,316 P.3d 496,507-08, petition/or review filed,

No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d

492, review granted, 178 Wn.2d 1010,311 P.3d 27 (2013).

       We decline to address this assignment of error for another reason. The State has

not sought to enforce the legal financial obligations. If it later does, Isidro Licon may

petition the court for remission under RCW 10.01.160(4), which states:

              A defendant who has been ordered to pay costs ... may at any time
       petition the sentencing court for remission of the payment of costs or of any
       unpaid portion thereof. Ifit appears to the satisfaction of the court that
       payment of the amount due will impose manifest hardship on the defendant
       or the defendant's immediate family, the court may remit all or part of the
       amount due.

       ISSUE 8: Did the trial court err by imposing community custody conditions? 


       ANSWER 8: No. 


       Isidro Licon challenges three community custody conditions: no contact with 


known gang members, no possession of gang paraphernalia, and notifying the community

corrections officer of any vehicles Licon owns or regularly drives. Licon did not object




                                             35 

No. 31670-0-ITI
State v. Licon


to these conditions below, but may challenge them for the first time on appeal. State v.

Jones, 118 Wn. App. 199,204, 76 P.3d 258 (2003).

       This court reviews sentencing conditions for abuse of discretion. State v.

Crockett, 118 Wn. App. 853, 856, 78 PJd 658 (2003). This court reverses only if the

decision is manifestly unreasonable or based on untenable grounds. State v. Williams,

157 Wn. App. 689, 691, 239 PJd 600 (2010).

       As a part of any sentence, the trial court may impose and enforce crime-related

prohibitions and affirmative conditions as provided in this chapter. RCW 9.94A.505(8).

A "crime-related prohibition" is "an order of a court prohibiting conduct that directly

relates to the circumstances of the crime for which the offender has been convicted."

RCW 9.94A.030(1O). In tum, '" [c]ircumstance' is defined as '[a]n accompanying or

accessory fact.'"   Williams, 157 Wn. App. at 692 (quoting BLACK'S LAW DICTIONARY

277 (9th ed. 2009)). The courts strive to protect freedom of speech, religion, and racial

equality, but freedom of association may be restricted if reasonably necessary to

accomplish the essential needs of the state and public order. Malone v. United States,

502 F.2d 554, 556 (9th Cir. 1974). No causal link need be established between the

condition imposed and the crime committed, so long as the condition relates to the

circumstances of the crime. Williams, 157 Wn. App. at 691.-92.

       The trial court did not abuse its discretion in imposing gang-related community

custody conditions. As discussed above, the assaults were gang-related, even though the

                                            36 

No. 3 I 670-0-III
State v. Licon


jury ultimately concluded the assaults neither advanced Licon's standing within Florencia

13 nor benefitted the gang. Isidro Licon arrived with other gang members at a gang

member's home to discuss the removal of the one member's brother to accommodate an

assertive female member of a different gang.

       The trial court did not abuse its discretion in requiring Isidro Licon to report any

vehicle he owns or regularly drives. Licon rode as a passenger in a vehicle to Sylvia

Guerra's home on February 10,2012, and fled from the altercation in a vehicle.      Th~


reporting requirement directly relates to these accompanying, accessory facts.                I
                                      CONCLUSION                                              t•
       We affirm Isidro Licon's three convictions and his sentence.                           I
                                                                                              l
       A majority ofthe 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
                                                                                              ,
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2.06.040.
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WE CONCUR:                                                                                    t

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                                             37 

