                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                             June 9, 2020



             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

 STATE OF WASHINGTON                                                  No. 52948-3-II

                                Respondent,

        v.

 STEPHEN WILLIAM GATES,                                        UNPUBLISHED OPINION

                                Appellant.

       CRUSER, J. – Stephen William Gates appeals from his jury trial conviction for unlawful

possession of a controlled substance, methamphetamine. Gates argues that the State engaged in

prosecutorial misconduct by cross-examining him about witness credibility and by referring in

closing argument to his failure to call witnesses in support of his unwitting possession defense.

Because Gates fails to show that the witness credibility testimony was prejudicial and referring to

Gates’s failure to call witnesses in support of his affirmative defense was not improper under State

v. Sundberg, 185 Wn.2d 147, 370 P.3d 1 (2016), Gates’s prosecutorial misconduct claims fail.

       Gates further challenges the trial court’s orders requiring that a private entity supervise his

community custody and requiring him to undergo a chemical dependency evaluation. Because the

trial court did not impose community custody, Gates’s argument that the trial court exceeded its

authority by requiring a private entity to supervise community custody rather than the Department

of Corrections (DOC) fails. But the State concedes that the trial court erred by requiring a chemical
No. 52948-3-II


dependency evaluation without entering a finding that a chemical dependency contributed to the

offense, and we accept the State’s concession.

        Accordingly, we affirm Gates’s conviction, but we remand for the trial court to vacate the

order for compliance monitoring to the extent it applies to the chemical dependency evaluation

and treatment.

                                              FACTS

                                         I. BACKGROUND

        In the early morning hours of March 21, 2018, staff working at the 7 Cedars Casino

discovered a small bag containing methamphetamine on the casino floor. Casino security watched

the surveillance tapes of the area where the bag had been found and saw Gates drop the bag from

his left hand.

        The casino staff contacted the sheriff’s office. Clallam County Deputy Sheriffs James

Dixon and Benjamin Tomco responded to the casino, reviewed the security tapes, located Gates,

took him to the security office, and questioned him. After Dixon field tested the substance in the

bag, Tomco arrested Gates.

        The State charged Gates with unlawful possession of a controlled substance,

methamphetamine. The case proceeded to a jury trial.

                                             II. TRIAL

A. DIXON’S AND TOMCO’S TESTIMONIES

        At trial, Dixon testified that the surveillance video showed the bag of methamphetamine

falling from Gates’s left hand onto the casino floor. Dixon also testified about his initial contact

with Gates.




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       Dixon stated that when he first detained Gates, he told Gates that he was being detained

“because [Dixon] had seen . . . a bag of a crystal substance fall from him.” Verbatim Report of

Proceeding (VRP) at 104. Gates responded “that he didn’t do drugs and then [Gates] said it might

have been his medication.” Id. at 104. When Dixon told Gates that “it looked like crystal

methamphetamine,” Gates denied doing drugs other than marijuana and said that “he didn’t know

what was in his pockets.” Id. at 104.

       Tomco testified that when he was patting Gates down after he was detained, he [Tomco]

commented to Gates “that his shoes look[ed] new,” and Gates initially responded, “[Y]eah, my

pants are new too.” Id. at 126. Tomco stated that Gates “then caught himself and said these are not

my pants.” Id. at 126.

B. GATES’S TESTIMONY

       Gates was the sole defense witness. He testified that on March 20, he had been working

with his friend John Nichols and that his (Gates’s) clothes had gotten dirty. Because Gates had a

first date that evening with a woman named Christina and he did not have time to go home to

change for the date, Gates borrowed some pants and a shirt from Nichols. Because he did not like

wearing other people’s shoes, he stopped by a store and purchased some shoes and socks before

picking up Christina.

       Gates denied knowing that the drugs were in his pocket, but he admitted that after he

watched the surveillance video he knew the drugs had come out of his pocket. He testified that he

contacted Christina after his arrest and that she had admitted to him that she had handed him the

bag of methamphetamine when she returned some change to him after purchasing some cigarettes

with his money.




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No. 52948-3-II


        On direct examination, Gates testified that when Dixon had first contacted him in the

casino, Dixon had asked him if he had dropped “a bag of dope.” Id. at 163. During cross-

examination, the State questioned Gates about the discrepancy between this testimony and Dixon’s

testimony that he had asked Gates about a bag of methamphetamine. Gates testified that he was

“not saying that [Dixon] changed his story,” and commented that he was “just saying [Dixon’s]

mistaken because he told me dope.” Id. at 181. Defense counsel did not object to his line of

questioning.

        When defense counsel questioned Gates about his conversation with Tomco about his

(Gates’s) shoes and clothes, Gates testified that he had told Tomco that his clothes were new too

but that they were not his. Later, on cross-examination, the State asked Gates if he “disagree[d]

with” Tomco’s testimony about what Gates had said about his clothing and about Dixon’s initial

comment to him:

        Q Deputy Tomco testified that you said, “yeah my pants are new too”. Then you
        caught yourself and said these aren’t my pants.
        A They’re meaning me. I can’t expect anybody to read through the lines and I’ve
        got to tell you I wasn’t the one documenting every word I did that night. These
        gentlemen are trained to do it.
        Q So they’re trying to document everything that you say, that’s part of their job.
        A Yeah.
        ....
        Q (By Mr. Snipe) Just to clarify, you’re still convinced that he said dope and that
        he’s wrong?
        A He’s mistaken.

Id. at 184. Gates did not object to this exchange on grounds that it was a comment on the witnesses’

credibility or veracity.

        On cross-examination, the State asked Gates if he was “still associated with John Nichols”

and whether he had asked Nichols to be in court that day. Id. at 171-72. Gates responded that he

still knew Nichols, but that he had not asked Nichols to be at the trial or for a statement.



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No. 52948-3-II


       On redirect, defense counsel asked Gates if his “relationship with Christina was good

enough that she would (inaudible) event [sic] to committing a felony that she hadn’t been charged

with?” Id. at 185. Gates responded, “No.” Id. at 185. He also testified that he had not been able to

“find her” after she had admitted to him that they were her drugs. Id. at 185.

C. CLOSING ARGUMENTS

       In its closing argument, the State commented that there was no evidence that Gates had

attempted to subpoena Christina or Nichols to testify, that they had not testified, and that there

were no statements from them admitted at trial. Gates did not object to this argument.

       In his closing argument, Gates argued unwitting possession based on Christina giving the

drugs to Gates without his knowledge rather than the fact he had been wearing Nichols’s pants. In

rebuttal, the State argued that it had proved the elements of the offense beyond a reasonable doubt

but that Gates had not proven his unwitting possession defense, in part because he did not present

any evidence from Christina or Nichols. Gates did not object to this argument.

       The jury found Gates guilty of possession of a controlled substance, methamphetamine.

                                         III. SENTENCING

       At sentencing, the State asked the trial court to find that Gates had a chemical dependency

that contributed to the offense and to order Gates to undergo a controlled substances use evaluation

and follow the recommended treatment. Gates argued that there was no evidence to support a

finding that Gates had a chemical dependency.

       Trial court made the following oral ruling:

               Okay, here’s what I’m going to do. You don’t have a history. I can’t really
       make a finding of chemical dependency because there’s nothing in front of me to
       say that you have a chemical dependence but I think as part of a sentence in a drug
       case I can still at least require you to get an evaluation and follow a
       recommendations on treatment. If you get an evaluation and an evaluator says you



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No. 52948-3-II


        don’t have any kind of significant problem then you wouldn’t have to participate in
        treatment so I’m going to leave that up to an evaluator.
                ....
                So, at any rate I’m not going to put you on DOC supervision, that doesn’t
        make any sense. I think if I sent you down to DOC they’d turn back and say this
        guy has no history we’re not going supervise him so I am going to do what I
        normally do for anybody who gets charged with a methamphetamine possession no
        matter what. Just about every time I have a meth case we give 30 days. If you have
        no prior history and those 30 days are converted to 240 hours of community service
        so that’s what I’m going to do. I’ll give you 30 days convert that to 240 hours of
        community service work and that will be supervised by Friendship Diversion
        Services. Now they’re going to supervise in two ways. You’re ordered to do 240
        hours of community service work in lieu of 30 days jail and also as part of the
        sentence you’re also to get an evaluation and follow recommendations on treatment
        so Friendship Diversion will oversee that so they’ll say go get an evaluation. If the
        evaluation says go to, you know, any kind of treatment or suggested programs then
        you’ll have to do it but I’m going to leave that up to the evaluation and – this is an
        order assigning community service work. There’s also Friendship Diversion does
        supervision. Is there a separate order for that one? So I’m going to have Friendship
        Diversion monitor as well so maybe we’ll do both of those.
                ....
        . . . I’ve signed an order assigning the Community Service and I’m signing the
        order for compliance so you’re going to have twelve months of compliance
        monitoring to Friend Diversion. They’re going to monitor to make sure you get
        your community service done. They’re also going to make sure that you get an
        evaluation and follow the recommendations on treatment and you’re to report to
        them no later than I guess the end of next week so I’m going to put 1-18-2019. So
        you have a week to tie up with them and set up their monitoring of you in regard to
        this matter.

Id. at 248-54 (emphasis added).

        In the judgment and sentence, the trial court initially marked the box stating that it had

made a special finding that “[t]he defendant has a chemical dependency that has contributed to the

offense(s). RCW 9.4A.607.” Clerk’s Papers (CP) at 19. But it then crossed out the finding in its

entirety.

        The court sentenced Gates to 30 days of total confinement under the first-time offender

waiver and converted the 30 days to “240 hours of community restitution (service) . . . under the

supervision of the [DOC] to be completed: on a schedule established by Friendship Diversion



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No. 52948-3-II


Services.” Id. at 21. The trial court struck out the section of the judgement and sentence related to

community custody.

        The trial court also entered an “Order Assigning Community Service Work.” Supplemental

Clerk’s Papers (CPS) at 63 (capitalization altered). This order stated that in lieu of 30 days of jail

time, the court ordered Gates “to perform 240 hours of community service work.” Id. at 63. It

further stated, “Defendant shall report for assignment to community service within three days of

release from incarceration or within three days of the date of this order to Friendship Diversion

Services.” Id. at 63 (emphasis omitted).

        Additionally, the trial court filed an “Order for Compliance Monitoring.” Id. at 64

(capitalization altered). This order stated, in part,

        The Defendant shall be subject to up to 12 months of Compliance Monitoring
        through Friendship Diversion Services pursuant to the Judgment and Sentence
        entered herein. The purpose of Compliance Monitoring is to ensure full compliance
        with the Judgment and Sentence, and all conditions contained therein. Defendant
        shall report to Friendship no later than 1/18, 2019. . .
        ....
        Defendant shall pay the fees and costs required, and follow the rules and guidelines
        of the Compliance Monitoring program, which includes compliance with all
        conditions of the Judgment and Sentence.

Id. at 64.

        Gates appeals.

                                              ANALYSIS

                                   I. PROSECUTORIAL MISCONDUCT

        Gates first argues that the State committed prosecutorial misconduct by cross-examining

him about Dixon’s and Tomco’s veracity and by referring in its closing argument to Gates’s failure

to call Nichols or Christina as witnesses. These arguments fail.




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No. 52948-3-II


A. LEGAL PRINCIPLES

       To prevail on his prosecutorial misconduct claims, Gates must establish that the State’s

conduct was both improper and that the improper conduct was prejudicial in the context of the

entire record and the circumstances at trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432

(2003). But Gates waives any error that he failed to object to “unless the prosecutor’s misconduct

was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.”

State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

B. VERACITY OF WITNESSES

       Gates first argues that the State engaged in prosecutorial misconduct by eliciting testimony

on cross-examination from Gates “about the veracity of other witnesses,” namely Dixon’s

testimony that he told Gates that he was suspected of dropping a bag of methamphetamine rather

than “dope,” and Tomco’s testimony that Gates told him that the pants were new rather than that

they belonged to someone else. Br. of Appellant at 8. But even assuming that this issue was

properly preserved and presuming, without deciding, that eliciting this testimony was improper, it

is in no way prejudicial in the context of this record.

       First, whether Dixon initially told Gates that the substance in the bag found on the casino

floor was methamphetamine or “dope” is irrelevant. Whether Gates knowingly possessed the bag

or whether Christina placed the bag in Gates’s pocket without his knowledge does not depend on

what Dixon initially said to Gates or Gates’s response. Second, because Gates’s defense was that

he had unknowingly placed the drugs in his pocket when Christina handed the bag to him with his

change, whether Gates’s pants were his or borrowed is also irrelevant.




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No. 52948-3-II


       Because neither Dixon’s nor Gate’s credibility on these issues was relevant to whether

Gates possessed the drugs or whether he unwittingly possessed the drugs, Gates does not establish

the prejudice required to show prosecutorial misconduct on this ground.

C. COMMENT ON GATES’S FAILURE TO CALL WITNESSES

       Gates next argues that the State committed prosecutorial misconduct by “repeatedly

comment[ing] on the failure of the defense to call potential witnesses” in support of his affirmative

defense of unwitting possession. Br. of Appellant at 8. Even presuming that this issue was

preserved, this argument also fails.

       Our Supreme Court has addressed and expressly rejected this same argument in Sundberg.

In Sundberg, the issue was identical to the one here, “whether a prosecutor commits error when,

during closing rebuttal argument, he comments that the defendant failed to call a witness to

corroborate his affirmative defense of unwitting possession of a controlled substance.” 185 Wn.2d

at 148. The Court held that “in a criminal prosecution where the defendant has the burden to

establish an affirmative defense, no error occurs where the prosecutor comments on the

defendant’s failure to present evidence or testimony in support of the defense.” Sundberg, 185 Wn.

2d at 148.

       Because the State’s argument was not improper, Gates fails to establish prosecutorial

misconduct on this ground.

             II. COMMUNITY CUSTODY SUPERVISION BY FRIENDSHIP DIVERSION SERVICES

       Gates next argues that the trial court exceeded its authority by ordering that he be

“supervised” by Friendship Diversion Services, which he asserts is a “private, for-profit

organization.” Br. of Appellant at 11-12, 13. He contends that only the DOC has the authority to

supervise an offender on “community custody.” Br. of Appellant at 11.



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No. 52948-3-II


       But the trial court did not sentence Gates to community custody. The court sentenced Gates

to 30 days of confinement under the first time offender sentencing alternative and then converted

his term of custody into 240 hours of community restitution,1 which was subject to monitoring by

Friendship Diversion Services. Community restitution “is a ‘sentence condition’ that the trial court

may order as a substitute for total confinement,” not a form of community custody or supervision.

State v. Zabroski, 56 Wn. App. 263, 265-66, 783 P.2d 127 (1989). Because Gates cites no authority

establishing that a private entity cannot supervise an offender’s community restitution, this

argument fails.2 See RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 549 (1992) (an appellate court will not consider an assignment of error that is

unsupported by argument or citation to authority).

                            III. CHEMICAL DEPENDENCY EVALUATION

       Gates also argues that the trial court erred in ordering him to obtain a chemical dependency

evaluation. The State concedes that because the trial court did not find that a chemical dependency

had contributed to this offense, the trial court lacked the authority to require a chemical dependency

evaluation.

       When sentencing a defendant as a first time offender, the trial court may impose conditions

authorized under RCW 9.94A.703. RCW 9.94A.650(4). RCW 9.94A.703(3)(d) allows the trial

court to require a defendant to participate in rehabilitative programs or perform other affirmative

conduct reasonably related to the offense. Here, the trial court struck the finding that a chemical


1
 Community restitution was formerly known as community service. State v. Law, 154 Wn.2d 85,
106, 110 P.3d 717 (2005).
2
  Additionally, the record contains no information regarding the county’s, State’s, or DOC’s legal
relationship with Friendship Diversion Services, beyond the fact the trial courts use its supervision
services in some cases. Without such additional information, we would be unable to fully evaluate
the trial court’s authority to utilize Friendship Diversion Services for supervisory purposes.


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No. 52948-3-II


dependency contributed to the offense, so there was no finding that the chemical dependency

evaluation was reasonably related to the offense. Accordingly, we accept the State’s concession

and remand for the trial court to vacate the order for compliance monitoring by Friendship

Diversion Services to the extent it applies to the chemical dependency evaluation and treatment.

        We affirm Gates’s conviction, but we remand for the trial court to vacate the order for

compliance monitoring to the extent it applies to the chemical dependency evaluation and

treatment.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    CRUSER, J.
 We concur:



 SUTTON, A.C.J.




 GLASGOW, J.




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