        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,               )             No. 77117-5-I
                                       )
                     Respondent/Cross- )             DIVISION ONE
Appellant,                             )
                                       )             PUBLISHED OPINION
             v.

GEORGE DONALD HATT, JR.,                    )
                                  )
                    Appellant/Cross-
 Respondent.                      )
_________________________________ )                  FILED: November 18, 2019
        HAZELRIGG-HERNANDEZ, J.    —   George Donald Hatt, Jr., seeks reversal of his

 convictions for first degree murder, unlawful possession of a firearm in the second

 degree, possession of an unlawful firearm, and evidence tampering. He contends

 that the State failed to disprove his claim of self-defense and that the trial court

 erred in giving an aggressor instruction, denying a motion to suppress evidence

 obtained during the execution of a search warrant, concluding that the two firearm

 counts were not part of the same criminal conduct, and imposing a criminal filing

 fee on an indigent defendant. In a statement of additional grounds for review, Hatt

 argues that the State failed to preserve allegedly exculpatory evidence and the

 court failed to protect his constitutional right to a speedy trial. We conclude that
 the court employed the incorrect analysis when determining whether the firearms

 counts were part of the same criminal conduct for purposes of offender score
No. 77117-5-1/2

calculation and sentenced Hatt based on an incorrect offender score. Because of

this error and because the parties do not dispute that the filing fee should be

stricken, we remand for resentencing. Hatt’s convictions are affirmed.


                                      FACTS

       In 2015, George D. Hatt, Jr. (Hatt), lived on a property in Granite Falls with

his girlfriend, Lea Espy. Several other people lived on the property in various

trailers and motor homes, including Jared Fincher, Shannon Sycks, and Mitch

Stamey.

       Hatt’s house was burglarized in the spring of 2015, and he believed that

Andrew Spencer was responsible.        Multiple witnesses heard Hatt say that he

wanted to kill Spencer in retaliation for the burglary. Stamey heard Hatt say ten or

more times that he was “going to get [Spencer] back.” Hatt denied saying that he

wanted to kill Spencer. He admitted to saying he was going to “get” Spencer, but

testified that his intention was to make Spencer face him and confess to what he

had done.

       On Halloween 2015, Spencer came to the Granite Falls property.            Hatt

assumed there was going to be a confrontation when he saw Spencer arrive.

However, Hatt testified that Spencer wanted to resolve the issues between them

because he had “two violent felonies, and one more strike and he’ll do life.” Other

residents on the property confirmed that the two were discussing the burglary and

seemed to be on good terms. After they talked, Hatt was confident that they had

resolved the issue.




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No. 77117-5-1/3

       In early November 2015, Andrew Spencer drove to the property with his

friend Kindall Lowenberg in the passenger seat of his car. While they were driving

to the property, Spencer asked Lowenberg how she dealt with confrontation.

Stamey was leaving the property at about the same time and encountered Spencer

on the road. Spencer and Stamey spoke through the windows of their vehicles.

Stamey then called Espy’s phone to alert Hatt that Spencer was on his way. Hatt

and Espy were in the upstairs living area of the main house. Fincher was working

on a car outside the main house. After Stamey’s call, Hatt yelled out the window

of the house to Fincher, “Andrew’s here.”

      When Spencer arrived, he got out of his car and walked over to Fincher.

Spencer had his left hand concealed in the pocket of his hoodie. Fincher extended

his right hand to shake hands with Spencer because he thought they were on good

terms. Spencer grabbed his outstretched hand, pulled Fincher toward him, and

punched him in the face with his left fist. Spencer did not have a gun or a weapon

of any kind, but Fincher suspected he might have had something in his left fist

because of how hard he hit.

      Fincher fell to the ground, and Spencer hit and kicked him about six more

times. Then Spencer said, “Now that you’re warmed up, we can talk.” At about

the same time that Spencer made that comment, Fincher heard the sounds of Hatt

running down the exterior staircase that led to the second floor of the main house

and cocking a gun. Hatt fired two shots, one of which hit Spencer in the head and

killed him. When he heard the shots, Fincher curled up on the ground for cover.

Fincher was scared that he would also be shot because Hatt had told him in the



                                      -3-
No. 77117-5-114

past, “Jared, if you’re ever here and Andrew shows up, you get the hell out of here,

because I have to kill you too because I can’t have witnesses.”

       When Fincher looked up, he saw that Spencer was dead and saw Hatt

walking to Spencer’s car.     Hatt told Fincher to clean himself up; Fincher was

bleeding from his lip and hands. Fincher went into the house to put on a clean

shirt because his was covered in blood. Hatt sat down in the driver’s seat of

Spencer’s car and begin talking to Lowenberg, who was still sitting in the

passenger seat. Hatt was still holding the gun when he got into the car. He locked

the car doors and asked Lowen berg if she needed any money. Hatt told her not

to tell anyone what had happened that night. As Fincher emerged from the house,

he saw Hatt getting out of Spencer’s car. Lowenberg heard Hatt say to Fincher, “I

asked you if you want me to do this. I’m not going down for this alone.”

       Hatt told Fincher to cover the body, and Fincher covered it with a tarp. Hatt

told Hoy, who had been asleep in Fincher’s trailer until she heard the gunshot, to

ride with Espy and take Lowenberg home. As she walked to the car, Hoy noticed

a person on the ground covered with a tarp. She got into Hatt’s sport utility vehicle

(SUV) with Espy and Lowen berg, and Espy drove Lowenberg home.

       Hatt began digging a hole in a fire pit on the property and instructed Fincher

to help him drag Spencer’s body to the hole. They put the body in the hole bent

over at the waist. Hatt remarked that Spencer would “forever be known as kissing

his own ass.” He jumped up and down on Spencer’s back five or six times before

starting to shovel dirt onto his body. Hatt instructed Fincher to “grab a shovel and

give [him] a hand.” He then grabbed a dumbbell and threw it on the body a few



                                        -4-
No. 77117-5-115

times. After the two of them buried Spencer’s body, Hatt lit a large fire in the fire

pit. Fincher saw Hatt pouring liquid from a one-gallon jug into the fire pit. Hatt told

Fincher not to breathe the smoke because he was putting acid on the fire.

        When Espy and Hoy returned to the property about 45 minutes after leaving,

there was a fire burning in the fire pit. Hoy heard Hatt tell Espy that he was sorry

for putting her in that situation but something had to be done. She heard him say

he had shot Spencer for robbing his house. The fire in the fire pit burned for three

days.

        Fincher eventually informed the Snohomish County Sheriff’s Office of what

had happened.      Detectives obtained a search warrant for the property and

discovered Spencer’s body in the fire pit.

        The medical examiner, Dr. Daniel Selove, recovered a bullet from Spencer’s

head and determined that he had been killed by a shot to the forehead. Dr. Selove

also noted what appeared to be a bullet hole in the right upper arm or shoulder

area of Spencer’s clothing and another in the right upper back of the garments.

Due to the accelerated decomposition of Spencer’s body caused by the fire, Dr.

Selove was not able to identify a bullet hole in the skin of the right shoulder. He

could not identify a bullet wound from the bones or remaining tissue in that location.

He did identify a slit injury about half an inch or smaller on Spencer’s front right

shoulder. Dr. Selove noted that this was not characteristic of a gunshot entrance

wound, although gunshot exit wounds sometimes appear as slits. He could not

say what caused the wound or whether it occurred postmortem or while Spencer

was dying. X ray images of Spencer’s chest showed a sliver of metal in his chest,



                                         -5-
No. 77117-5-116

“not sufficiently large or of the shape to say that it is a bullet but suggestive that a

bullet left a fragment somewhere in the—in the chest/trunk part of the body.”

       Hatt was charged with first degree murder (firearm allegation), second

degree murder (firearm allegation), unlawful possession of a firearm in the second

degree, possession of an unlawful firearm, intimidating a witness (firearm

allegation), and two counts of tampering with physical evidence. At trial, Hatt

argued that he had acted in self-defense and defense of another.

       Hatt testified that he was familiar with Spencer’s reputation in the

community and his reputation was that “[h]e wasn’t anybody to mess with.” He

described a number of confrontations that he or other members of the community

had had with Spencer, including an incident in May 2015 when Spencer punched

Hatt at a gas station. Hatt left town that night, and when he returned, his house

had been burglarized and vandalized. A picture was torn off the wall and there

was a swastika drawn on the wall and writing that said, “go home, Jew.” Hatt did

not know who had vandalized the house but came to believe that it was Spencer

when Spencer yelled at him about a month later, “I thought I told you to leave,

Jew.” He encountered Spencer at another gas station and asked him if he would

come out to the property to talk. Spencer responded, ‘Well, I’ll be out at your

property sometime. You just won’t know when.” Hatt took this as a threat. He

heard from someone else that Spencer was “waiting to bury” him if he went to

Spencer’s house.

      When Spencer came to the property on Halloween, he indicated to Hatt that

he was there to work out the issue of the burglary. Hatt said no one was on the



                                         -6-
No. 77117-5-117

property when Spencer arrived, although Stamey and Sycks pulled up less than

an hour later. As he was leaving, Spencer asked if a trailer on the property was

Fincher’s. Spencer mentioned something about Fincher being a snitch. Hatt said

he and Spencer shook hands, but he asked Spencer not to return to the property.

       Hatt testified that he was worried and scared when Stamey called to tell him

Spencer was coming to the property.        From what he knew of Spencer, Hatt

believed he would be armed. Hatt opened the window to tell Fincher that Spencer

was coming and saw Spencer getting out of his car. He saw Spencer approach

Fincher with his left hand in the pocket of his hoodie. Fincher and Spencer looked

like they were about to shake hands, but Spencer pulled Fincher toward him and

hit him with his left hand. Hatt testified that he thought Spencer had a gun in his

left hand and had pistol-whipped Fincher. He saw Fincher go down and went to

his safe to retrieve a gun. Hatt turned on the television that showed a live feed

from the outside security cameras.        On the screen, he could see Fincher

scrambling on his hands and knees toward the stairwell while Spencer continued

to punch and kick him.

       Hatt ran out the door to the exterior stairwell and saw Spencer kick Fincher

in the side while Fincher was on the ground. He saw a lot of blood on Fincher.

Hatt still thought Spencer had a gun in his left hand that was aimed down, so he

started yelling, “Hey, hey, hey, hey, hey,” as he came down the stairs. Spencer

turned toward Hatt, and Hatt fired a shot in the air. Hatt testified that Spencer got

an angry look on his face, took a step toward him, and seemed to be raising his

left hand. Hatt fired a second shot at Spencer. After Spencer went down, Hatt



                                        -7-
No. 77117-5-1/8

moved to kick the gun out of his hand and realized that Spencer had a black glove

on his left hand and was holding a black metal bar about one inch in diameter and

four to six inches long. Hatt testified that he was not thinking of the burglary when

he shot Spencer and had assumed the two of them had resolved their issues when

they talked on Halloween. Hatt asked Fincher if he was all right and said Fincher

seemed “punchdrunk.”

      After Espy and Hoy left to drive Lowenberg home, Hatt said he did not

consider calling the police because he was afraid that he would go jail. He also

said he was worried about retaliation from Spencer’s family or associates. Hatt

confirmed that he believed Spencer had burglarized his house in the spring of 2015

and stolen around $40,000 worth of property.

       Hatt proposed a jury instruction explaining that homicide is justifiable when

committed in lawful defense of the slayer or another in the slayer’s presence. The

trial court gave the proposed instruction and also instructed the jury that self-

defense is not available as a defense when the defendant’s actions provoked or

commenced the confrontation with the victim.

      The jury found Hatt guilty of murder in the first degree, unlawful possession

of a firearm in the second degree, possession of an unlawful firearm, and one

count of tampering with physical evidence. The jury found him not guilty of the

second count of tampering with physical evidence. The jury also found that he

was armed with a firearm at the time he committed the murder.              Hatt was

sentenced to a total term of confinement of 434 months. The court imposed a

$200 criminal filing fee as part of the judgment and sentence. Hatt timely appealed.



                                        -8-
No. 77117-5-1/9

                                    DISCUSSION

I.     Suppression of Evidence

       Hatt contends that the trial court erred in denying his motion to suppress

evidence procured while sheriffs deputies executed a search warrant. He argues

that the warrant was not constrained by sufficient particularity and the deputies

exceeded the scope of the warrant. He specifically assigns error to three of the

trial court’s findings of fact and one conclusion of law.

       We review de novo a trial court’s conclusions of law relating to suppression

of evidence. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).

Appellate courts review findings of fact for substantial evidence. ki. “Substantial

evidence exists where there is a sufficient quantity of evidence in the record to

persuade a fair-minded, rational person of the truth of the finding.” State v. Hill,

123 Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings of fact become

verities on appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).

       A.     Findings of Fact

       Hatt contends that the court erred in entering three findings of fact that

characterized the deputies’ actions at the property as “processing” the fire pit. He

argues that the word “processing” “implies mere routine handling of matters and

material within the warrant’s authority,” but does not apply to this situation, where

officers “dug into the ground on real property   .   .   .   and searched for a body.” The

State defines “process” as “subject to examination through a series of steps.” To

“process” may also mean “to subject to a particular method, system, or technique

of preparation, handling, or other treatment designed to effect a particular result.”



                                         -9-
No. 77117-5-1/10

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, 1808 (3d ed. 2002). To “search”

means “to look into or over carefully or thoroughly in an effort to find something.”

ki.at 2048.

       The unchallenged findings of fact are treated as verities on appeal. The

trial court found that the Snohomish County Sheriff’s Office obtained a warrant to

search the property where Hatt resided after Fincher told officers that Hatt had

killed Spencer and buried him on the property. Detectives searched the property

and found what they believed might be skin and dark hair in the fire pit. They then

found what appeared to be a rib bone in the fire pit. Doctors from the Snohomish

County Medical Examiner’s Office arrived at the property and exhumed Spencer’s

body from the fire pit. There is sufficient evidence in the record to persuade a fair-

minded, rational person that the detectives examined the fire pit through a series

of steps or looked into it thoroughly in an effort to reveal evidence. Regardless of

any connotation, the court did not err in finding that the detectives were

“processing” the fire pit.

       B.      Conclusion of Law

       Hatt next contends that the court erred in concluding that the search of the

fire pit was permissible. The trial court’s first conclusion of law stated: “The sheriff’s

office did not exceed the scope of the warrant. The warrant did permit the sheriffs

to dig through the fire pit. The fire pit was an ‘item’ that could be searched. There

was nothing in the warrant that precluded the police from digging in the fire pit.”

Hatt argues that the officers executing the warrant exceeded the scope of the




                                          -10-
No. 77117-5-I/li

warrant when they disturbed the soil in the fire pit because the warrant did not state

this place to be searched with particularity.

       The warrant authorizes the search of the .083-acre property where Hatt

resided, which contained “a single family residence and numerous detached

sheds, outbuildings and various operable and apparently inoperable recreation

vehicles or like items used by ‘squatters.” Officers were instructed to seize, among

other things:

       Any and all firearms in their various forms   .




       All ammunition, bullets, bb’s, pellets or cartridges both fired and
       unfired which is identified as a projectile whose purpose is to be fired
       from a firearm or similarly styled item  .




       Trace evidence to include: blood, skin, fingerprints, tissue or other
       biological material located for the collection and comparison to the
       victim and/or suspect and ANY items containing the same.



       Rags, clothes, towels, containers and/or like items commonly utilized
       to clean, conceal, destroy or otherwise alter blood, tissue or other
       biological material or items such as lye, lime, acids or other
       chemicals or items of similar substance and their respective
       containers. Digging equipment or other tools which could be used to
       disturb soil, excavate soil or disrupt soil or vegetation.

The warrant specified that “[t]he authorization extends to all locked, sealed or

otherwise located items that may require damaging in order to gain access.”

                1.   Particularity

       Hatt argues that the warrant was invalid in its entirety because it did not

meet the particularity requirement of the Fourth Amendment. We review de novo

whether a warrant is sufficiently particular to satisfy the demands of the

Constitution. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611(1992).


                                        -11-
No. 77117-5-1/12

       The Fourth Amendment requires that warrants describe with particularity

the places to be searched and the persons or things to be seized. U.S. Const.

amend. IV. This requirement is intended to prevent general searches, “seizures

of objects on the mistaken assumption that they fall within the issuing magistrate’s

authorization,” and “the issuance of warrants on loose, vague, or doubtful bases

of fact.” ki. at 545. The court interprets search warrants “in a commonsense,

practical manner, rather than in a hypertechnical sense.” j.4~ at 549.

                     a.      Place to be Searched

       A warrant adequately describes a place to be searched when “the officer

executing the warrant can, with reasonable care, identify the place intended.” State

v. Cockrell, 102 Wn.2d 561, 570—71, 689 P.2d 32 (1984). A street address or legal

description of the property is sufficient to identify the place to be searched. See ki.

at 569. In one instance, we upheld a warrant authorizing a search of 60 acres of

real property. ~ State v. Christiansen, 40 Wn. App. 249, 251, 253, 698 P.2d

1059 (1985). “A warrant to search a specific tract of real property necessarily

authorizes a search of parts of that property.” ki. at 253—54.

       In this case, the warrant specified the correct street address of the .083-

acre property where Hatt lived as the property to be searched. Officers executing

the warrant were able to identify the property. Because a warrant for the search

of real property authorizes a search of parts of the property and the fire pit was

part of the property, the fire pit was included in the place to be searched and did

not need to be separately designated. The warrant described the place to be

searched with adequate particularity.



                                        -   12-
No. 77117-5-1/13

                      b.      Items to be Seized

       We next consider whether the warrant described the items to be seized with

adequate particularity. Hatt’s chief objection to the language of the warrant seems

to be that the warrant authorized a search for “trace evidence” of biological material

rather than an entire body.

       A search warrant must be “sufficiently definite so that the officer executing

the warrant can identify the property sought with reasonable certainty.” State v.

Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997). A description of items to be

seized is sufficient if it is “as specific as the circumstances and the nature of the

activity under investigation permit.” Perrone, 119 Wn.2d at 547.               Generic

descriptions may be sufficient if probable cause is shown and a more precise

identification cannot be determined at the time the warrant is issued. j.ç[. A showing

of probable cause requires reasonable grounds for suspicion that the accused

committed the indicated crime from the facts in the affidavit and reasonable

inferences therefrom. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001).

In Clark, the Supreme Court found that a warrant for “trace evidence from the victim

in the van” satisfied the particularity requirement of the Fourth Amendment. kL at

754 (emphasis omitted).

       The affidavit stated that Fincher saw Hatt digging in the fire pitand Hatt told

Fincher he would handle the disposal of Spencer’s body. Fincher stated that Hatt

started a fire in the fire pit that burned actively for two or three days. On the second

day that the fire was burning, Fincher saw Hatt pour liquids into the fire pit, which

Hatt identified as “lye, lime, and acid.” When a detective observed the fire pit a



                                         -13-
No. 77117-5-1/14

few days later, he noticed that “the soil in the area of the fire pit appeared freshly

disrupted and it contained debris that was consistent with a recent fire having

burned in the pit area.” The detective did not note seeing a body in the fire pit.

       Based on the information available to the sheriff’s office when it applied for

the search warrant, the description of “trace evidence” of biological material was

sufficient to satisfy the particularity requirement. The affidavit established probable

cause, and a more precise description of the biological material was not available

at the time the warrant issued. It would have been reasonable to assume that

trace evidence might be all that remained of Spencer’s body after it was burned

for two to three days and doused with corrosive chemicals. The descriptions given

of the biological and physical evidence to be seized allowed the officers executing

the warrant to identify the material to be seized with reasonable certainty.

                     c.     Suspected Crimes

       In a statement of additional grounds for review, Hatt also contends that the

warrant was overbroad because it did not specify the subsections of the statutes

governing the suspected crimes. The warrant stated that there was “probable

cause to believe that the crime(s) of: RCW 9A.32.030 Murder in the First Degree,

RCW 9A.32.050 Murder in the Second Degree, RCW 9.41.040 Unlawful

Possession of a Firearm Second Degree” had been committed and that evidence

of those crimes could be found at the property. (emphasis omitted)

       In State of Washington v. Joserh N. Riley, the Washington Supreme Court

found that a warrant that did not list any specific crime, but authorized the seizure

of “any fruits, instrumentalities and/or evidence of a crime” and specified only broad



                                        -   14-
No. 77117-5-1/15

categories of material, was overbroad and invalid. 121 Wn.2d 22, 26, 28, 846 P.2d

1365 (1993). The court held that “[a] search warrant that fails to specify the crime

under investigation without otherwise limiting the items that may be seized violates

the particularity requirement of the Fourth Amendment.”            at 27.   In State of

Washington v. Lloyd J. Higgins, Division Two of this court found that a warrant was

overbroad when it “did not contain a list of items to be seized, did not incorporate

the affidavit [listing specific items to be seized] by reference, and did not list a

subsection of the second degree assault statute.” 136 Wn. App. 87, 90, 94, 147

P.3d 649 (2006).

       Here, although the warrant did not specify the specific subsections of the

statutes, it was clear which crimes were under investigation. Additionally, as

discussed above, the warrant included a detailed list of the items to be seized,

which were logically related to the specified crimes.          The warrant was not

overb road.

              2.     Scope

       Hatt contends that the officers executing the warrant exceeded the

permissible scope of the warrant when they moved and sifted through the dirt and

debris in the fire pit. As we concluded above, because the warrant authorized the

search of the entire property and the fire pit was on that property, the fire pit was

within the scope of the warrant.

       Having concluded that the fire pit was permitted to be searched under the

warrant, the next issue is whether moving and sifting through dirt and debris in the

fire pit was a permissible way to search the fire pit. The warrant did not specifically



                                        -15-
No. 77117-5-1/16

authorize, nor did the affidavit request, any specific method of searching the

property. Officers were authorized to seize “[d]igging equipment or other tools

which could be used to disturb soil, excavate soil, or disrupt soil or vegetation.”

The warrant also authorized the search of any locked or sealed items that required

damaging to access the contents.

          Reading the warrant in a common-sense manner, it is sufficiently clear that

the officers executing the warrant would understand that, because they were

authorized to seize digging equipment, they should pay particular attention to and

search areas of the property that appeared to have been dug into. Although the

fire pit was not locked or sealed, the disruption of the dirt and debris in the fire pit

is analogous to damaging an item to access evidence inside.               The officers

permissibly searched the fire pit when they moved and sifted through the dirt and

debris.

          Hatt also appears to argue that the officers exceeded the scope of the

search warrant when they seized Spencer’s body because the warrant only

authorized the seizure of “trace evidence” of biological material. This argument is

not well taken.     The warrant directed the officers to search the property for

evidence of murder and specified that they were authorized to seize biological

material of the victim. “Officers with a proper search warrant for premises have

the right to seize any contraband which they discover while conducting a search

within the scope of the warrant.” State v. Burleson, 18 Wn. App. 233, 239, 566

P.2d 1277 (1977). Finding more evidence than expected does not exceed the




                                         -   16-
No. 77117-5-1/17

scope of the search warrant. The court did not err in denying the motion to

suppress.


II.    Aggressor Instruction

       Hatt contends that the court erred in instructing the jury that self-defense

was not available as a defense if the defendant initiated the confrontation because

the State did not present sufficient evidence to warrant the instruction. The State

argues that the aggressor instruction was an accurate statement of the law and

that there was sufficient evidence that Hatt initiated the confrontation to justify the

instruction.

       Jury instructions are sufficient when they “are supported by substantial

evidence, allow the parties to argue their theories of the case, and when read as

a whole properly inform the jury of the applicable law.” State v. Clausing, 147

Wn.2d 620, 626, 56 P.3d 550 (2002). We review alleged instructional errors de

novo, in the context of the instructions as a whole. State v. Brett, 126 Wn.2d 136,

171, 892 P.2d 29 (1995).

       A killing is justified when the slayer has a reasonable apprehension that the

victim is imminently going to cause great personal injury to the slayer or another

person in the slayer’s presence. RCW 9A.16.050. A defendant has the burden to

produce some evidence that he acted in self-defense or defense of another before

the court will instruct the jury on justifiable homicide. State v. Janes, 121 Wn.2d

220, 237, 850 P.2d 495 (1993). When a defendant makes a threshold showing

that the killing was justified, the jury instructions must make the law of self-defense

or defense of another “‘manifestly apparent to the average juror.” State v. LeFaber,


                                        -   17-
  No. 77117-5-1/18

  128 Wn.2d 896, 900, 913 P.2d 369 (1996), abrogated on other grounds by State

  v. O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009), (quoting State v. AlIery, 101 Wn.2d

  591, 595, 682 P.2d 312 (1984)).

         Generally, a slayer may not claim self-defense to justify a killing when they

  were the aggressor or provoked the confrontation. State v. Craig, 82 Wn.2d 777,

  783, 514 P.2d 151 (1973).       The court may appropriately give an aggressor

  instruction when “there is credible evidence from which a jury can reasonably

  determine that the defendant provoked the need to act in self-defense.” State v.

~ Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). If there is conflicting evidence

  about whether the defendant provoked the altercation, the aggressor instruction is

  appropriate. j4~ at 910. However, “courts should use care in giving an aggressor

  instruction” because the instruction can affect the State’s burden to disprove a

  claim of self-defense beyond a reasonable doubt. ki. at 910 n.2. For this reason,

  we have noted that an aggressor instruction is warranted only in few situations and

  that the parties can sufficiently argue their theories of the case without the

  instruction. State v. Stark, 158 Wn. App. 952, 960, 244 P.3d 433 (2010).

         In the recent case of State of Washington v. Michael Espinosa, we

  considered the inclusion of an aggressor instruction in a similar factual scenario. 8

  Wn. App. 2d 353,438 P.3d 582 (2019). In Espinosa, the defendant fired two shots,

  the second of which killed the victim. Id. at 356. Espinosa testified that the first

  shot was a warning shot intended to prevent the victim from attacking another

  person and the second shot was fired in self-defense when the victim turned and

  began advancing on him. j~ at 357. The defendant requested that the court



                                         -18-
No. 77117-5-1/19

instruct the jury on both self-defense and defense of another, and the State

requested that the court give an aggressor instruction. ki. at 357—58. The court

elected to give the self-defense instruction and the aggressor instruction, but not

the defense of another instruction. jçL. at 358. In closing argument, the State urged

the jury to consider only the conflict between Espinosa and the victim when

evaluating whether Espinosa was the aggressor. Id. at 359.

       In that case, we found that it was error to give the self-defense and

aggressor instructions without the defense of another instruction because the

instructions as given failed to make the law of self-defense manifestly clear to the

jury. j.4. at 361. The exclusion of the defense of another instruction in conjunction

with the State’s closing argument, which “removed the warning shot from the

greater context of the situation,” impaired the jury’s ability to assess whether the

warning shot was a reasonable use of force or an act of aggression. ki at 363.

       Here, the court found that Hatt had produced sufficient evidence to warrant

an instruction on both self-defense and defense of another. The court seemed to

believe that it was required to give the aggressor instruction if it gave the self-

defense instruction.   The State agreed that if the court gave the self-defense

instruction, the aggressor instruction would also be permissible.          The court

concluded that “[it could not] see how giving a self-defense instruction [it] wouldn’t

be obliged also to give the first aggressor instruction.”

       It follows from our statement that “[t]he theories of the case can be

sufficiently argued and understood by the jury without such instruction” that a trial

court is not required to give an aggressor instruction. Stark, 158 Wn. App. at 960



                                        -19-
No. 77117-5-1120

(quoting State v. Arthur, 42 Wn. App. 120, 125 ni, 708 P.2d 1230 (1985)). But,

although the court was under no obligation to give the aggressor instruction, it was

not error to give the instruction. There was conflicting evidence presented at trial

about whether Hatt initiated the altercation with Spencer. Hatt was not present

outside when Spencer began hitting Fincher. Fincher’s testimony suggested that

Spencer’s assault had stopped by the time Hatt came outside. Fincher did not

hear Hatt yelling as he came down the stairs, but heard the gun being cocked and

remembered the two shots being fired in quick succession. Hatt testified that the

first shot was a warning shot to get Spencer’s attention and intimidate him. He

stated that he did not fire the second shot until Spencer turned toward him and

Hatt thought he was raising a gun toward him. Under Hatt’s theory, he fired the

first shot in defense of Fincher and the second in defense of himself. Under the

State’s theory, the altercation between Spencer and Fincher had ended by the time

Hatt fired the gun and Hatt provoked any need to act in self-defense.

       Unlike Esrinosa, the court in this case instructed the jury on both self-

defense and defense of another, which presented the jury with a complete picture

of the relevant law. The jury could have credited both Fincher’s testimony that the

fight was over and Hatt’s testimony that Spencer turned toward him after the first

shot and he feared for his life, in which case the jury could have concluded that he

provoked the need to act in self-defense. The trial court did not err in giving the

aggressor instruction.




                                       -   20   -
No. 77117-5-1/21

Ill.   Sufficiency of Evidence

       Hatt contends that the State did not produce sufficient evidence to disprove

beyond a reasonable doubt his claim of self-defense as a defense to the charge of

murder. When reviewing the sufficiency of evidence on appeal, the key inquiry is

whether any rational trier of fact could have found the essential elements of the

charged crime beyond a reasonable doubt, viewing the evidence in the light most

favorable to the State. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

When a defendant challenges the sufficiency of the evidence, he admits the truth

of the State’s evidence and all reasonable inferences from that evidence. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       The State presented testimony from multiple witnesses about the

relationship between Hatt and Spencer in the months leading up to his death, the

events of the night Spencer was killed, and the forensic examination of Spencer’s

body. Viewing the evidence produced at trial in the light most favorable to the

State, a rational trier of fact could find that the State disproved Hatt’s claim of self-

defense beyond a reasonable doubt. Multiple witnesses testified that Hatt had

talked about killing Spencer in retaliation for robbing him. The State produced

evidence that he came out of the house and fired two shots in quick succession.

Spencer was not armed with a gun or knife. A rational trier of fact could find that

Hatt did not have a reasonable apprehension that Spencer was about to cause

great personal injury to him. The evidence was sufficient to disprove Hatt’s claim

of self-defense beyond a reasonable doubt.




                                         -   21   -
No. 77117-5-1/22

IV.    Same Criminal Conduct

       Hatt contends that the trial court erred in finding that the charges of

possession of an unlawful firearm and unlawful possession of a firearm did not

constitute the same criminal conduct. He argues that, because of this error, the

court sentenced him based on a miscalculated offender score.

      We review the trial court’s determination of same criminal conduct for abuse

of discretion or misapplication of the law. State v. Tili, 139 Wn.2d 107, 122, 985

P.2d 365 (1999). For the purpose of calculating an offender score, when the court

finds that multiple offenses in the current case encompass the same criminal

conduct, those offenses are counted as a single crime. RCW 9.94A.589(1)(a). The

statute defines “same criminal conduct” to mean “two or more crimes that require

the same criminal intent, are committed at the same time and place, and involve

the same victim.” ~ The sentences imposed for crimes that encompass the same

criminal conduct are to run concurrently. RCW 9.94A.589(1)(a).

      A claim that the trial court erred in determining whether two crimes

constituted the same criminal conduct differs from a double jeopardy violation

claim. State v. French, 157 Wn.2d 593, 611, 141 P.3d 54 (2006). “The double

jeopardy violation focuses on the allowable unit of prosecution and involves the

charging and trial stages[, while tjhe ‘same criminal conduct’ claim involves the

sentencing phase.” ki.

      In Hatt’s sentencing memorandum, he argued that the two current offenses

should count as one point toward his offender score as follows:

            Mr. Hatt was found guilty of Unlawful Possession of a Firearm
      (UPF) as well as Possession of an Unlawful Firearm (PUF) for


                                      -   22   -
No. 77117-5-1/23

       possessing the same weapon. The principle of double jeopardy
       prevents a person from being “twice put in jeopardy for the same
       offense.” Wash. Const. art. I, § 9. The prohibition on double jeopardy
       generally means that a person cannot receive multiple punishments
      for the same offense. Dep’t of Revenue v. Kurth Ranch, 511 u.s.
       767, 769 n.1, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). To
      determine whether Double Jeopardy has been violated, we must
       look to the act or course of conduct. State v. Villanueva-Gonzalez,
       180 Wn.2d 975, 981—82 (2014).
              Here, Mr. Hatt possessed one weapon which, according to the
      jury, met the criteria for both UPF and PUF. It is the same course of
      conduct and should only be counted as one point towards Mr. Hatt’s
      [offender score].

Although Hatt invoked the specter of double jeopardy, his argument ultimately

concerned calculation of the offender score rather than the entry of the convictions.

The State argued in a supplemental sentencing memorandum that the two crimes

did not constitute the same criminal conduct because the mens rea differed.

      At the sentencing hearing, the State addressed Hatt’s “argument regarding

jeopardy, merger, or same criminal conduct.” The State reiterated that the two

crimes were not the same criminal conduct because they contained different

knowledge requirements. Hatt argued briefly that the two offenses should only

count as one point toward his offender score because they were two different

charges based on the same act of possessing the gun. He clarified that he was

not arguing that the offenses merged or were the same offense.

      The court announced its analysis and ruling as follows:

             I think the case that speaks to this most directly is State vs.
      Walker, 143 Wn. App. 880.1 The Walker case does demonstrate that
      the Blockburqer2 Test still applies for purposes of same criminal
      conduct and determining whether or not two offenses should count
      as a single point.


      1   State v. Walker, 143 Wn. App. 880, 181 P.3d 31(2008).
      2   Blockburgerv. United States, 284 U.S. 299, 304, 52S. Ct. 180,76 L. Ed. 306 (1932).


                                            -23-
No. 77117-5-1/24

              And according to the Blockburqer Test, the question is
       whether each contains an element the other does not. And in this
       case, each does contain an element that the other does not and,
       therefore, fails the Blockburqer Test. And each of these is a separate
       crime for scoring purposes because it is clear that the legislature
       intended to punish both crimes separately. This is not specifically an
       application of the merger doctrine, this is just a matter of same
       criminal conduct, and they are not same criminal conduct. Each one
       counts as a separate felony.

Because it counted each crime as a separate felony for purposes of the offender

score calculation, the court sentenced Hatt based on an offender score of four.

       In Walker, Division Two of this court analyzed 1) whether the entry of

convictions for both first degree theft and first degree trafficking in stolen property

placed Walker in double jeopardy, and 2) whether Walker was denied effective

assistance of counsel when his counsel failed to argue that the two convictions

constituted the same criminal conduct for purposes of calculating his offender

score. 143 Wn. App. at 886. The Walker court applied the Blockburqer ‘same

elements” test and the State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896), “same

evidence” test to analyze the double jeopardy issue. j~ at 885—86. The court

analyzed the same criminal conduct issue using the framework described in RCW

9.94A.589(l)(a). ki. at 890.

       In this case, the trial court analyzed the same criminal conduct issue using

the test for a double jeopardy violation. Because the court misapplied the law, it

abused its discretion.

       The Supreme Court has remarked that “[d}eciding whether crimes involve

the same time, place, and victim often involves determinations of fact.” State v.

Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6 (2016).                However, when the



                                        -   24   -
No. 77117-5-1/25

underlying facts are undisputed, the determination of same criminal conduct may

be resolved as a matter of law. See State v. Graciano, 176 Wn.2d 531, 537 n.1,

295 P.3d 219 (2013). The parties agreed at oral argument that the question of

whether two crimes constitute the same criminal conduct for purposes of Hatt’s

offender score calculation is a legal issue that we may decide on appeal. We elect

to do so.

          To determine whether Hatt’s convictions for unlawful possession of a

firearm and possession of an unlawful firearm stemmed from the same criminal

conduct, we must determine whether they “require the same criminal intent, are

committed at the same time and place, and involve the same victim.” RCW

9.94A.589(1)(a). All three prongs must be present to support a finding that the

offenses constituted the same criminal conduct. State v. Porter, 133 Wn.2d 177,

181, 942 P.2d 974 (1997). The defendant bears the burden to establish each

element of same criminal conduct under RCW 9.94A.589(1)(a). Graciano, 176

Wn.2d at 540—41. “[T]he statute is generally construed narrowly to disallow most

claims that multiple offenses constitute the same criminal act.” Porter, 133 Wn.2d

at 181.

          Both charges stemmed from Hatt’s possession of the firearm on the night

that Spencer was shot, so the criminal conduct supporting each charge occurred

at the same time and place. The Supreme Court has held that the victim of

unlawful possession of a firearm is the general public. State v. Haddock, 141

Wn.2d 103, 110—11, 3 P.3d 733, 736 (2000). In so holding, the court analogized

the offense to unlawful possession of a controlled substance.j~ at 111. By this



                                       -   25   -
No. 77117-5-1/26

same logic, possession of an unlawful firearm also victimizes the general public.

Accordingly, the victim of the two crimes was the same.

       Finally, we must consider whether the two crimes involved the same

criminal intent. The Washington Supreme Court first interpreted the elements of

the same criminal conduct test in State of Washington v. James T. Dunaway. 109

Wn.2d 207, 743 P.2d 1237 (1987). Although the statutory analysis for same

criminal conduct was adopted after the offenses in Dunaway were committed, that

opinion indicated that “the standard for ‘same criminal conduct’ we have adopted

today is similar to a recently enacted legislative definition of the same term.” jç~ at

215   (citing   former   RCW      9.94A.400(1)(a)     (1987),   recodified    as   RCW

9.94A.589(1)(a)). The court later characterized the common law test for same

criminal conduct set out in Dunaway as “entirely consistent with the statutory test

set out in [former RCW 9.94A.400(1)(a)].” State v. Lessley, 118 Wn.2d 773, 777—

78, 827 P.2d 996 (1992).

       In analyzing the third factor, Dunaway directed courts to “focus on the extent

to which the criminal intent, as objectively viewed, changed from one crime to the

next.” Dunaway, 109 Wn.2d at 215. The Supreme Court did not interpret objective

criminal intent to be equivalent to statutory intent, stating that “counts with identical

mental elements, if committed for different purposes, would not be considered the

‘same criminal conduct.” Haddock, 141 Wn.2d at 113. Washington courts applied

this test consistently for nearly 30 years. See, e.g., State v. Garza-Villarreal, 123

Wn.2d 42, 49, 864 P.2d 1378 (1993) (“[T]he crimes, objectively viewed, furthered

one overall criminal purpose.”); Haddock, 141 Wn.2d at 113 (“Haddock’s single



                                         -   26   -
No. 77117-5-1/27

intent to possess stolen property motivated the conduct underlying all seven

convictions. In sum, his criminal intent, objectively viewed, did not change from

one crime to the next.”); Graciano, 176 Wn.2d at 540—41 (‘[W]e do not need to

reach the comparatively more difficult question of whether Graciano’s objective

intent changed from one crime to the other.     .




       However, in 2016, the Washington Supreme Court departed from this

analysis when analyzing whether rape of a child and incest constituted the same

criminal conduct. Chenoweth, 185 Wn.2d 218 (2016). In State of Washington v.

Chad C. Chenoweth, the court compared the statutory criminal intent requirements

of the two crimes to determine that “[t]he intent to have sex with someone related

to you differs from the intent to have sex with a child.” ki. at 223.   However,

because the Supreme Court did not overrule, or even discuss, the line of case law

applying the Dunaway test and has not applied the Chenoweth analysis outside of

the context of those particular crimes, we believe Dunaway remains the applicable

framework.

       Although Hatt’s possession of the weapon was unlawful for two separate

reasons, his objective criminal intent in committing the two crimes was the same:

to possess the firearm. Because the two crimes were committed at the same time

and place, against the same victim, and with the same objective criminal intent,

they constituted the same criminal conduct. The court erred in counting these as

separate points toward Hatt’s offender score.

       We remand for resentencing after recalculation of offender score consistent

with this opinion.



                                      -27-
No. 77117-5-1128

V.        Criminal Filing Fee

          Hatt contends that the court imposed a $200 criminal filing fee in error

because he is indigent. After Hatt was sentenced, a change in the law made it

impermissible to impose discretionary costs on indigent defendants and the

Supreme Court held that this change applies prospectively to cases on appeal.

LAWS      OF   2018, ch. 269,   § 17(2)(h); State v. Ramirez, 191 Wn.2d 732, 747, 426
P.3d 714 (201 8). The State argues that the $200 criminal filing fee was mandatory

at the time it was imposed, but concedes that the fee should be stricken in light of

Ramirez. Because the parties do not dispute this issue, the criminal filing fee

should not be included in the new judgment and sentence.


VI.       Preservation of Evidence

          In a statement of additional grounds for review, Hatt contends that the State

failed in its duty to preserve and disclose evidence when it failed to obtain video

evidence of the shooting allegedly caught on Hatt’s security camera. He raised

this issue below in a motion to dismiss pursuant to State of Arizona v. Larry

Youn~blood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), and CrR

8.3(b). The court denied this motion orally, reasoning that “the defense has failed

to prove that there was particular evidence that existed and that, if it did, it would

have been helpful to the defense and that the State did anything wrong with regard

to it.”

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

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

However, a trial court’s findings of fact on a motion to dismiss for failure to preserve


                                            -   28   -
No. 77117-5-1/29

potentially exculpatory evidence are reviewed for substantial evidence. See State

v. Ortiz, 119 Wn.2d 294, 301—02, 831 P.2d 1060 (1992), overruled on other

grounds by State v. Condon, 182 Wn.2d 307, 343 P.3d 357 (2015). As stated

above, “[s]ubstantial evidence exists where there is a sufficient quantity of

evidence in the record to persuade a fair-minded, rational person of the truth of the

finding.” Jj[[~ 123 Wn.2d at 644.

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

State “has a duty to disclose material exculpatory evidence to the defense and a

related duty to preserve such evidence for use by the defense.” State v.

Wittenbarger, 124 Wn.2d 467,475,880 P.2d 517(1 994) (citing Bradyv. Maryland,

373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215 (1 963); Californiav. Trombetta, 467

U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). If the State fails to preserve

material exculpatory evidence, the criminal charges must be dismissed. Id. at 475.

Failure to preserve evidence that does not rise to the level of “material exculpatory

evidence” but is “potentially useful” to the defense only constitutes a denial of due

process if the defendant can show bad faith on the part of law enforcement.

Youngblood, 488 U.S. at 57—58.

      A case report indicates that officers secured the property on November 10,

2015. In a recorded interview with police on the same day, Sycks indicated she

had heard a rumor that a game camera had recorded Hatt driving Spencer’s car.

When the search warrant was executed on November 11, 2015, officers observed

a camera on a pole, but the cable attached to the camera was cut. The same day,

Fincher indicated in a second recorded interview with police that there was a



                                       -   29   -
No. 77117-5-1/30

camera pointing at the driveway on the property, but Hatt had told him the camera

was not recording. Fincher assumed that Hatt saw Spencer drive onto the property

on the live camera feed.

       Jamie Wilson told police that she had gone to the property on November

12, 2015 and found three video home system (VHS) cassette tapes labeled with

women’s names in the house. She took the tapes because she had heard a rumor

that Hatt set up a tripod to record the shooting, but she admitted she did not have

any evidence to substantiate this rumor. She indicated that she had not watched

the tapes but would try to turn them over to police.

       Zane Smith also spoke with the police that day and indicated that his brother

had a computer tower that belonged to Hatt. He said that there was a digital image

on the computer that showed Hatt shooting a .50 caliber rifle. The police report

indicates that detectives followed up with both Wilson and Smith but were not able

to contact them again, and police did not recover the property.

       In a recorded interview with police on November 12, 2015, Espy, Hatt’s

longtime girlfriend, confirmed that Stamey’s call was the only reason they knew

Spencer was driving onto the property. She stated that she had not seen the

shooting but had heard two shots. Epsy told the detective that Hatt did not tell her

what happened but she believed Hatt had killed Spencer. The detective asked if

there was any other information that she thought would be important and she said

there was not.

      On November 19, 2015, Espy had a second recorded interview with

Snohomish County detectives. She repeated that Stamey had called to tell them



                                       -   30   -
No. 77117-5-1/31

Spencer was approaching. She stated again that Hatt went out the kitchen door

after Spencer drove up and then she heard two shots soon after. When pressed

by the interviewing detective, Espy insisted that she did not see the shooting

happen. She acknowledged again that she believed that Hatt killed Spencer. She

also admitted that she had lied in her first recorded interview about where Hatt

was, about a note from Hatt in her car, and about not seeing the body because

she was trying to protect Hatt. She reported that he had explained the events to

others by saying that Spencer had burglarized the house and was a threat to them,

so he took care of the threat. She said that he had never told her that Fincher shot

Spencer and indicated there was “no question” that Hatt was the shooter.

       Defense counsel submitted a declaration detailing the relevant facts to the

best of his knowledge with the motion to dismiss. In the declaration, he stated that

both parties had been forwarded a letter on December 5, 2016 by an Assistant

United States Attorney that Espy wrote as part of a federal criminal case in which

she was involved.    In the letter, Espy wrote that she watched Fincher shoot

Spencer through the live security camera feed.

      Defense counsel interviewed Espy on January 18, 2017. She stated that

there were three cameras at the house: one on the utility pole, one on the shed,

and a small, battery-operated game camera on a tree. She said she had not been

able to find the game camera and thought someone had taken it. She explained

that the other cameras were connected to the computer inside the house and they

could watch the live feed on the television or computer monitor. She thought the

camera would record for about six hours and then record over itself. She said the



                                       -   31   -
No. 77117-5-1/32

camera data was stored on the computer. Espy stated that the house had been

burglarized after the shooting and all of the computer equipment and cameras,

except for the one on the utility pole, had been taken.

          She said again that Stamey had called to tell them Spencer was coming,

but also stated that they would have seen his car on the feed when he got a little

closer.     She indicated that the cameras weren’t recording on the night of the

shooting. She then stated that she and Hatt saw Spencer arrive on the live feed

and she saw Spencer hitting Fincher with his right hand closed around an object.

After Hatt went outside, Espy said she saw on the feed that Spencer was holding

a gun. She could not see Hatt on the monitor but knew he was off-screen on the

left side of the camera’s field of view. She heard the two shots and thought they

came from the right side of the screen. She admitted she did not see Fincher shoot

Spencer, but assumed he had based on the way the body fell. When asked about

her assertion in the letter from the federal case, she explained that, although she

had not seen it happen, she believed that Fincher had shot Spencer. She believed

that Hatt was not the shooter because she didn’t see a gun in his hand when he

left the house and she didn’t believe he could kill someone.

          In this case, the trial court’s factual conclusion that Hatt had failed to prove

that the video evidence existed was supported by substantial evidence.

Regardless of whether Espy watched the live feed of the shooting, she and Fincher

both stated that they believed the camera was not recording at the time of the

shooting. If the camera was recording, there was nothing to suggest that the

recordings had been preserved, rather than automatically overwritten, and would



                                           -   32   -
No. 77117-5-1/33

be found on the computer in Smith’s brother’s possession. Nor was there any

evidence to suggest that the digital files on the computer had been transferred onto

the VHS tapes that Wilson took from the property. A reasonable fact-finder could

conclude that Hatt had not shown that the allegedly relevant evidence existed. The

court did not err in denying the motion to dismiss.


VII.   Speedy Trial

       In a statement of additional grounds for review, Hatt also contends that the

trial court failed to protect his right to a speedy trial in violation of the United States

and Washington Constitutions and CrR 3.3.

       Hatt was arraigned on November 16, 2015, and trial was set for January 8,

2016. On December 17, 2015, the State indicated that it was still in the process

of providing discovery to the defense. Hatt’s counsel requested a “Campbell3

continuance” for more time to review discovery. Hatt objected to the continuance,

citing his rights to a speedy trial and due process. The court stated that it had “no

doubt” that defense counsel “could not possibly be prepared adequately” to go to

trial in less than two months on a charge that carried a possible sentence of up to

50 years. The court explained that it was balancing Hatt’s right to a speedy trial

with his right to adequate representation. The court continued the trial to April 8,

2016 and requested that counsel file affidavits “outlining what needs to be done so

the record can be clear” if further continuance was requested without Hatt’s

agreement.




       ~ State v. Cam~beII, 103 Wn.2d 1, 691 P.2d 929 (1984).


                                           -   33   -
No. 77117-5-1/34

       On February 3, 2016, defense counsel moved to continue the trial to

September 9, 2016. The parties indicated that discovery was still ongoing and

defense counsel had personal conflicts in June, July, and August that would not

permit a trial of the length expected. Hatt objected to the continuance because he

wanted a speedy trial, but defense counsel indicated that Hatt had signed a

Campbell continuance form. The court found good cause to continue the trial and

reset the date as requested.

       On June 30, 2016, both parties asked that the trial be continued to February

17, 2017. The State indicated that negotiations were taking place after significant

delay in obtaining documentation of Hatt’s prior out-of-state convictions. Defense

counsel explained that he still needed to conduct witness interviews and other

investigation and a continuance was necessary to ensure that he was effectively

representing Hatt. Hatt objected, and the court found good cause to continue the

trial over his objection.

       On January 27, 2017, defense counsel requested to continue the trial date

in order to be able to provide effective representation at trial. He indicated that he

needed more time to interview witnesses and prepare motions and that co-counsel

had been appointed to help speed up the process. Hatt objected, citing his right

to a speedy trial. The court clarified that it understood his objection:

       THE COURT: If I understand your position, then, Mr. Hatt, you’re not
       saying that the delay would prejudice your defense. You’re just
       saying you’re tired of all this delay. Is that about right?

       THE DEFENDANT: Yes, your Honor. But, of course, I do object to
       this because I do feel it is—it is prejudice to my, you know, speedy
       trial rights.



                                        -   34   -
No. 77117-5-1/35

       THE COURT: I got that. Prejudice to your rights but not to your
       preparation for trial. They’re different.

       THE DEFENDANT: No, he needs it. I can’t argue. I’m happy with
       everything Mr. Schwarz has done up to this point. I have no
       complaints.

       THE COURT: All right. Thank you, sir.

The court explained to Hatt that it was balancing his speedy trial right with his right

to effective assistance of counsel and “the one that will prevail today is your right

to effective assistance.” The court continued the trial to April 28, 2017, “finding

good cause to continue until that date based upon the need for Mr. Schwarz to be

prepared for trial.”

       A.      CrR3.3

       We review de novo whether the trial court violated CrR 3.3. State v. Kenyon,

167 Wn.2d 130, 135, 216 P.3d 1024 (2009). States can prescribe reasonable

periods for commencement of trials consistent with constitutional standards.

Barker v. Winqo, 407 U.S. 514, 523, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

Under Washington’s speedy trial rule, a defendant who is detained in jail must be

brought to trial within 60 days of arraignment. CrR 3.3(b)(1)(i), (c)(1).

Continuances appropriately granted by the court are excluded from the calculation

of time to trial and extend the allowable trial date to 30 days after the end of the

excluded period. CrR 3.3(b)(5), (e)(3), (f).

       The court may grant a continuance on its own motion or the motion of a

party when the administration of justice so requires and the defendant will not be

prejudiced in the presentation of his defense. CrR 3.3(f)(2). When a defendant’s

counsel brings the motion requesting the continuance, the defendant’s objection


                                        -   35   -
No. 77117-5-1/36

to the requested delay is waived. CrR 3.3(f)(2); State v. Ollivier, 178 Wn.2d 813,

824, 312 P.3d 1(2013). If a defendant is not brought to trial within the applicable

time period, the court must dismiss the charges with prejudice, provided the

defendant objects within ten days after notice of trial setting is mailed or otherwise

given. CrR 3.3(d)(3), (h).

       As a threshold matter, we consider whether this issue is preserved for

appeal. The court must dismiss a prosecution for violation of CrR 3.3 on a motion

by the defendant. State v. Barton, 28 Wn. App. 690, 693, 626 P.2d 509 (1981).

“The motion must be specific enough to direct the court’s attention to the provision

of the rule the defendant seeks to invoke and the basis of the motion in order to

preserve the issue for appeal.” j4~ If a defendant does not move to dismiss on this

basis before trial, he does not preserve this issue for appeal. State v. Mason, 31

Wn. App. 680, 685, 644 P.2d 710 (1982).

       Here, defense counsel raised the speedy trial issue to the court during pre

trial motions as follows:

       [MR. SCHWARZ:] Number 4 is essentially a preservation of a
       constitutional speedy trial issue.
              You weren’t present for all the prior hearings. Mr. Hatt has
       objected to every continuance in this case. Every continuance has
       been a Campbell continuance or something of that nature.
              Mr. Hatt wishes to preserve that issue here today. I believe he
       has to raise it again to preserve it. We’re raising it again as sort of
       the cumulative effect of the continuances. Again, it’s hard for me to
       do that because of a Campbell continuance. I was the one asking for’
       the continuance. I’m in a somewhat awkward position here.
              But nonetheless, this is something that both Mr. Hatt and I
       have come up with together, and I am—it’s here to preserve those
       issues—

       THE COURT: It’s not a motion. It’s just a record.



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No. 77117-5-1/37

        MR. SCHWARZ: It is a record.

        THE COURT: All right. Very well. Then there’s nothing for me to rule
        upon. Next.

Because defense counsel accepted the court’s characterization of this as “just a

record” rather than a motion and the court did not make a ruling, it appears that

this issue has not been preserved for appeal. Even if this record was sufficient to

preserve the CrR 3.3 issue, Hatt’s objection to the delay is waived because his

counsel requested each of the continuances over his objection.4 Accordingly, Hatt

cannot contest the alleged violation of CrR 3.3.

        B.      Constitutional Speedy Trial Right

        Although the purpose of CrR 3.3 is to ensure that a defendant’s

constitutional right to a speedy trial is protected, compliance with the rule does not

necessarily mean that no constitutional violation has occurred. Ollivier, 178 Wn.2d

at 823. We review a claim of a constitutional violation de novo. State v. lniguez,

167 Wn.2d 273, 280, 217 P.3d 768 (2009).

         “[T]he analysis for speedy trial rights under article I, section 22 [of the

Washington Constitution] is substantially the same as the Sixth Amendment

analysis.” Ollivier, 178 Wn.2d at 826 (citing lniquez, 167 Wn.2d at 289). The United

States Supreme Court adopted a balancing test in Barker to analyze alleged

speedy trial right violations. lniquez, 167 Wn.2d at 283 (citing Barker, 407 U.S. at

530). Some delay in bringing a case to trial is both necessary and inevitable. Id.


        ~ It is not clear from the verbatim report of proceedings whether defense counsel brought
the motion for a continuance granted on December 17, 2015. However, counsel’s
characterization of the matter as a “CamQbell continuance” suggests it is a request for a
continuance by defense counsel to ensure effective representation but objected to by the
defendant, as was approved in Campbell, 103 Wn.2d at 15.

                                             -   37   -
No. 77117-5-1/38

       To trigger the balancing analysis, a defendant must first show that the delay

“crossed a line from ordinary to presumptively prejudicial.” Id. (citing Doqqett v.

United States, 505 U.S. 647, 651—52, 112 5. Ct. 2686, 120 L. Ed. 2d 520 (1992);

Barker, 407   u.s.   at 530). This inquiry is necessarily fact-dependent and relative;

for example, “the delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S.

at 531. The Washington Supreme Court has rejected “a formulaic presumption of

prejudice upon the passing of a certain period of time” in favor of a fact-specific

analysis of the length of delay, complexity of the charges, and reliance on

eyewitness testimony. lniquez, 167 Wn.2d at 292.

       In lniquez, the Washington Supreme Court found the eight-month delay in

a first-degree robbery case to be “just beyond the bare minimum needed to trigger

the Barker inquiry under these circumstances.” ki. at 293. In Ollivier, a delay of 23

months was sufficient to trigger the Barker analysis in a prosecution for possession

of child pornography. 178 Wn.2d at 819, 828. Division Three of this court found

an 18-month delay sufficient to trigger a Barker analysis in a prosecution for first

degree murder where the defendant spent the entire time in custody and

eyewitness testimony was a critical part of the State’s evidence. State v. Galleqos,

No. 32841-4-Ill, slip op. at 19—20 (Wash. Ct. App. Oct. 13, 2016) (unpublished),

http://www. courts.wa.gov/opinions/pdf/3284 I 4_unp. pdf.

       Hatt was charged by information on November 13, 2015. The affidavit of

probable cause indicated he was not yet in custody at that time, so the charging

initiated the time-to-trial calculation. The length of delay from charging to trial was



                                         -   38   -
No. 77117-5-1139

approximately 18 months. Hatt was in custody for nearly the entirety of this period.

This delay is sufficient to trigger the Barker analysis.

       To determine whether a defendant’s constitutional right to a speedy trial

was violated, Barker requires that a court consider the “[ljength of the delay, the

reason for the delay, the defendant’s assertion of his right, and prejudice to the

defendant.” 407 U.S. at 530. The length of delay once presumptive prejudice has

been established is a different assessment than during the threshold phase.

Iniquez, 167 Wn.2d at 293.       In assessing this factor, the Supreme Court has

considered the fact that the bulk of the continuances were sought by defense

counsel to ensure adequate preparation to be “an extremely important aspect of

the balancing test.” Ollivier, 178 Wn.2d 831. In Ollivier, the court concluded that

this first factor weighed against the defendant when “the length of delay was

reasonably necessary for defense preparation.”         at 831.

       The second factor that the court considers under Barker is the reason for

the delay. 407 U.S. at 530. “When the delay is due to trial preparation needs.

the first and second factors are closely related.” Ollivier, 178 Wn.2d at 831. In

assessing this factor, the court evaluates each party’s responsibility for the delay

and considers each party’s blameworthiness and the impact on the defendant’s

right to a fair trial. Barker, 407 U.S. at 531. “Delay caused by defense counsel is

chargeable to the defendant.” Ollivier, 178 Wn.2d at 832.

       The third Barker factor is the defendant’s assertion of his right to a speedy

trial. 407 U.S. at 530. Failure to assert a speedy trial right will pose an obstacle to

proving that a defendant was denied a speedy trial. ~ at 531.



                                        -   39   -
No. 77117-5-1/40

       Finally, the court must consider whether the delay prejudiced the defendant.

k~. at 532. This factor necessitates consideration of the interests of the defendant

that the speedy trial right was designed to protect: prevention of oppressive pretrial

incarceration, minimizing anxiety and concern of the accused, and limiting the

possibility that the defense will be impaired. j~ To show that their constitutional

right to a speedy trial has been violated, a defendant ordinarily must establish

actual prejudice. Ollivier, 178 Wn.2d at 840. Where prejudice is not presumed due

to an extreme delay, a defendant must establish “particularized prejudice that

would weigh heavily against the State.” ki. at 844.

       The third form of prejudice, possible impairment to the defense, is the most

important “because the inability of a defendant adequately to prepare his case

skews the fairness of the entire system.” Barker, 407 U.S. at 532. Hatt contends

that his defense was impaired because of the loss of the allegedly exculpatory

video evidence.     However, as discussed above, the trial court reasonably

concluded that Hatt had not shown the existence of that evidence. There is no

indication that the delay caused witnesses to become unavailable or extant

evidence to disappear. In fact, defense counsel indicated he was not adequately

prepared to take the case to trial at any earlier time. Hatt has not shown any actual

prejudice to his defense from the delay.

       On balance, the Barker factors weight against Hatt. Like Ollivier, the delay

in this case was principally requested to ensure that defense counsel was prepared

to provide effective assistance to Hatt. Defense counsel stated that he could not

be ready for trial until the end of April 2017. Although Hatt objected to the delay



                                        -40-
No. 77117-5-1/41

and was subject to comparatively strict conditions of detention, the delay was not

unduly long, the reasons for delay were primarily attributable to the defense and

necessary to ensure adequate representation, and he has not shown any

particularized prejudice resulting from the delay. Hatt’s constitutional right to a

speedy trial was not violated.

       Remanded for resentencing.




WE CONCUR:
                                                                  p




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