                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       January 18, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 48116-2-II

                               Respondent,

        v.

 JOHN PALACIOS AQUINO,                                       UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — John Palacios Aquino appeals his convictions for second degree identity

theft, bail jumping, and forgery. We conclude that (1) sufficient evidence supports the identity

theft conviction, (2) the bail jumping charging document is not deficient, and (3) the trial court

properly denied Aquino’s dismissal motion. We affirm his convictions.

                                             FACTS

                                    I. BACKGROUND FACTS

       In October 2014, Aquino tried to cash a $1,900.24 check at the Emerald Queen Casino.

The check was written on the account of the Paint Smith Company. Casino staff noticed alterations

on the check, believed the check was fraudulent, and contacted law enforcement. Officer Gary

Tracy arrived, reviewed the check, and spoke to Aquino and casino security staff. Officer Tracy

arrested Aquino.
No. 48116-2-II


                                       II. CHARGING DOCUMENT

          In May 2015, by amended information, the State charged Aquino with second degree

identity theft, forgery, and two counts of bail jumping.1 The information’s caption states that it

was filed in the Superior Court of Washington for Pierce County. For the first bail jumping charge,

the information stated,

                                               COUNT III
                  And I, MARK LINDQUIST, Prosecuting Attorney for Pierce County, in the
          name and by the authority of the State of Washington, do accuse JOHN PALACIOS
          AQUINO of the crime of BAIL JUMPING, a crime of the same or similar
          character, and/or a crime based on the same conduct or on a series of acts connected
          together or constituting parts of a single scheme or plan, and/or so closely
          connected in respect to time, place and occasion that it would be difficult to separate
          proof of one charge from proof of the others, committed as follows:
                  That JOHN PALACIOS AQUINO, in the State of Washington, on or about
          the 22nd day of January, 2015, did unlawfully and feloniously, having been held
          for, charged with, or convicted of Identity Theft in the Second Degree and/or
          Forgery, a class “B” or “C” felony, and been released by court order or admitted to
          bail with knowledge of the requirement of a subsequent personal appearance before
          any court in this state, fail to appear as required, contrary to RCW
          9A.76.170(1),(3)(c), and against the peace and dignity of the State of Washington.

Clerk’s Papers (CP) at 5 (emphasis added). The wording was identical for the second count of bail

jumping aside from the date: “the 18th day of March, 2015.” CP at 6.2




1
    RCW 9.35.020(3); RCW 9A.60.020(1)(a), (b); RCW 9A.76.170(1), (3)(c).
2
    Aquino did not challenge the information at trial.

                                                    2
No. 48116-2-II


                               III. MOTION TO DISMISS OR SUPPRESS

         In June 2015, Aquino’s counsel filed a motion to dismiss the charges of second degree

identity theft and forgery under CrR 8.3(b) and CrR 4.7(h)(7)(i)3 or to have Officer Tracy’s

testimony suppressed due to a Brady4 violation. Defense counsel argued that the State did not

notify him that Officer Tracy made a false statement in a past police report. Defense counsel had

represented the defendant, Joaquin Delgado, in the past case, and there, Officer Tracy accused

Delgado of trying to hit him with a motor vehicle, which led to a second degree assault with a

deadly weapon charge.

         Aquino’s counsel also submitted Officer Tracy’s Delgado police report, an e-mail

exchange defense counsel had with the Pierce County deputy prosecutor, Diane Clarkson, and

Clarkson’s statement dropping the second degree assault charge.

         In his report, Officer Tracy states that he stepped in front of Delgado’s car, that Delgado

“drove [the car] directly toward” Officer Tracy, and that Delgado would have hit Officer Tracy if

he had remained where he stood. CP at 21. Officer Tracy signed his report certifying under penalty

of perjury that the statement was true and correct.

         In the e-mail exchange, Clarkson opined that surveillance video of the incident showed that

Officer Tracy did not step in front of the car, but stood next to it, and that because the car was




3
  CrR 8.3(b) authorizes dismissal of a criminal prosecution where government misconduct
prejudiced the accused by materially affecting the accused’s right to a fair trial. CrR 4.7(h)(7)(i)
authorizes the court to dismiss an action or take other appropriate action if a party has failed to
comply with applicable discovery rules. Aquino challenges only the denial of his motion under
CrR 8.3(b).
4
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                                  3
No. 48116-2-II


pointed away from Officer Tracy, it would not have hit him if he remained where he stood.

Clarkson stated, “Upon review of the surveillance tape, the State does not have sufficient evidence

to pursue the charge of Assault in the Second Degree.” CP at 23.

       Defense counsel argued that the evidence from the Delgado case (Delgado evidence)5 that

he submitted with his motion is impeachment evidence with respect to Officer Tracy. Officer

Tracy’s assertion that Aquino made suspicious statements with respect to the check would be used

by the State as evidence of guilt. Thus, defense counsel argued that Officer Tracy’s credibility as

a witness was in question and prior instances of dishonesty by Officer Tracy would be important

exculpatory evidence. Defense counsel argued that the Delgado evidence showed a prior instance

of dishonesty because it showed that Officer Tracy “made a false statement in his police report.”

CP at 8. Defense counsel opined that at a minimum, the prosecutor inadvertently suppressed the

Delgado evidence. Defense counsel thus argued that this suppression prejudiced Aquino because

“at this moment, no one is scheduled to testify on the exculpatory matter.” CP at 10. This was the

sum of defense counsel’s prejudice argument in his pleadings.

       The State responded that the trial court should deny the motion because the Delgado

evidence was not potential impeachment evidence. The State further argued that Aquino could

not show prejudice because defense counsel had the Delgado evidence that he argued the State

should have disclosed. And the State opined that Officer Tracy’s police department confirmed



5
  In Aquino’s motion, he specifically mentions “Delgado’s case” and the prosecutor’s e-mail in
relation to the impeaching evidence, while at the hearing on the motion Aquino references the
surveillance video as the impeaching evidence. The parties do not specify what exact items they
are referring to when they discuss the impeaching evidence. We assume the impeachment
evidence discussed by the parties is the evidence Aquino included in his motion to dismiss as well
as the video.

                                                4
No. 48116-2-II


that he had never been disciplined for any honesty or integrity issues, including for the Delgado

case.

         On June 30, the trial court heard arguments on Aquino’s motion to dismiss. Defense

counsel noted that he had been in contact with Clarkson and confirmed that she could testify at

trial regarding the Delgado evidence. The State played the surveillance video. The video showed

Officer Tracy running up to the passenger side of Delgado’s car. Delgado then drove forward past

Officer Tracy with space between Officer Tracy and the car. As the car drove by, Officer Tracy

kicked at the car, but the video does not show that the car drove towards him.

         The trial court ruled,

         [I]n order for this to be impeachment evidence, it needs to be clear that somebody
         lied under oath, somebody made a false representation under oath, and I am not
         going to find, based on the video that I just saw, based on the report that I have read
         . . . I’m not going to find that this officer lied.
                  Clearly, the video is at odds with his description of the event, but to find
         that he made a material misrepresentation or that he lied in the course of
         investigating this incident I think is more of a stretch than I’m going to make.
                  . . . [A]ny time there is video, the video is almost always at odds with at
         least somebody’s description of the event. To find that everybody is lying who
         describes an event different than it appears in a video is, in my judgment, not
         something that’s appropriate, and I’m not going to make that kind of a finding in
         this case.

2 Report of Proceedings (RP) at 61-62 (emphasis added). The trial court concluded that the

Delgado evidence was not potential impeachment evidence and denied Aquino’s motion to

dismiss.6




6
    There is no written order on Aquino’s motion to dismiss in our record.

                                                   5
No. 48116-2-II


                                             IV. TRIAL

         At trial on July 1, Officer Tracy, Paint Smith Company employee Marcia Cavender, casino

cashier James Gardner, and his supervisor Kathy Faucett were among the State’s witnesses.

Officer Tracy testified that after he read Aquino his Miranda7 rights, Officer Tracy asked Aquino

where he got the check. Aquino told Officer Tracy that he got the check in the mail. When Officer

Tracy asked about Aquino’s employer to learn more about how Aquino got the check in the mail,

Aquino said that he worked for the Paint Smith Company, but then said he actually worked for a

subcontractor. And when asked for more information about the subcontractor, Aquino could not

provide his last job site, pay rate, or supervisor name. Cavender testified that she issued checks

for Paint Smith Company and that based on the check’s number, it was a check that she wrote to

a vendor for $498. The check appeared to be altered because the payee, address, and amount areas

had a “whited out” area, different from the company’s usual checks. 2 RP at 132. In addition, the

font differed from the one that the company uses. Cavender confirmed that Aquino did not work

for Smith Paint Company and that she never wrote a check to him on behalf of the company.

         Gardner testified that after Aquino handed him the check to cash, Gardner took it to Faucett

to approve, and Faucett was suspicious of the check. Gardner also verified that the check and the

casino surveillance video of his interaction with Aquino offered by the State were fair and accurate

representations. The check and casino surveillance video were entered into evidence. At no point

during the video did any casino employee hand Aquino cash or return the check. The check itself

contained no stamps or other markings indicating that it was cashed.




7
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                  6
No. 48116-2-II


       Faucett testified that Aquino’s name, the date, the amount of the check, and Aquino’s

address were all typed over what appeared to be erased areas. On the top left corner of the check,

the issuing company name, “Paint Smith,” included the misspelled word “Copmany.” Ex. 1. After

reviewing the check, Faucett notified her supervisors who immediately called casino security. She

stated that she was “not going to approve a check” that she believed was bad. 2 RP at 101. The

defense rested without presenting any witnesses.

                             V. IDENTITY THEFT JURY INSTRUCTION

       The second degree identity theft to-convict instruction stated in relevant part,

              To convict the defendant of Identity Theft in the Second Degree as charged
       in Count I, the following elements of the crime must be proved beyond a reasonable
       doubt:
              (1)      That on or about 3rd day of October, 2014, the defendant knowingly
                       obtained, possessed, or transferred, or used as a means of
                       identification or financial information of another person;
              (2)      That the defendant acted with the intent to commit or aid or abet any
                       crime;
              (3)      That the defendant obtained credit, money, goods, services, or
                       anything else that is $1500 or less in value from the acts described
                       in element (1) or did not obtain any credit, money, goods, services,
                       or other items of value.

CP at 58 (emphasis added). Neither party objected to this instruction.

                                 VI. VERDICT AND SENTENCING

       The jury found Aquino guilty as charged.8 The trial court sentenced Aquino to 10 months

of confinement. The trial court noted that Aquino was indigent and lacked prospects for future

income. Aquino explained to the trial court that his daughter had a serious medical condition that




8
  The facts related to the two bail jumping charges are not relevant to this appeal and are not
included here.

                                                 7
No. 48116-2-II


created a significant hardship for his family. As a result, Aquino’s wife worked full time and

Aquino helped care for his daughter and their other three children. Aquino had not worked in quite

some time, but when he does work, he worked as a roofer. Aquino stated that he would look for

work once released. The trial court entered an order of indigency allowing Aquino to appeal at

public expense. Aquino appeals.

                                           ANALYSIS

                                I. SUFFICIENCY OF THE EVIDENCE

       Aquino relies on the law of the case doctrine to argue that insufficient evidence supports

his conviction because the second degree identity theft to-convict instruction obligated the State

to prove that he obtained nothing or something valued at $1,500 or less. We disagree that the

evidence is insufficient.

                                    A. STANDARD OF REVIEW

       In a sufficiency of the evidence challenge, we view the evidence in the light most favorable

to the State and determine whether any rational fact finder could have found the elements of the

crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

“Substantial evidence” is evidence sufficient to persuade a fair-minded person of the truth of the

asserted premise. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

       “In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s

evidence and all reasonable inferences that can be drawn from it.” State v. Drum, 168 Wn.2d 23,

35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the State and interpreted

most strongly against the defendant.’” Homan, 181 Wn.2d at 106 (quoting State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992)). We “must defer to the trier of fact for purposes of


                                                8
No. 48116-2-II


resolving conflicting testimony and evaluating the persuasiveness of the evidence.” Homan, 181

Wn.2d at 106.

             B. LAW OF THE CASE DOCTRINE AND SECOND DEGREE IDENTITY THEFT

        Jury instructions to which neither party objects become the law of the case and delineate

the State’s proof requirements. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)

(quoting State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968)). In criminal cases, the State

assumes the burden of proving otherwise unnecessary elements of the offense when such added

elements are included without objection in the “to convict” instruction. Hickman, 135 Wn.2d at

102.9

        Identity theft is defined as follows:

        (1) No person may knowingly obtain, possess, use, or transfer a means of
        identification or financial information of another person, living or dead, with the
        intent to commit, or to aid or abet, any crime.
                (2) Violation of this section when the accused or an accomplice violates
        subsection (1) of this section and obtains credit, money, goods, services, or
        anything else of value in excess of one thousand five hundred dollars in value . . .
        shall constitute identity theft in the first degree. Identity theft in the first degree is
        a class B felony punishable according to chapter 9A.20 RCW.
                (3) A person is guilty of identity theft in the second degree when he or she
        violates subsection (1) of this section under circumstances not amounting to
        identity theft in the first degree. Identity theft in the second degree is a class C
        felony punishable according to chapter 9A.20 RCW.

RCW 9.35.020 (emphasis added).




9
 In January 2016, the United States Supreme Court decided Musacchio v. United States, ___ U.S.
___, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). Aquino argues that we should not apply Musacchio
because the Washington Supreme Court has not addressed it. This court declined to follow
Musacchio in State v. Makekau, 194 Wn. App. 407, 415 n.2, 378 P.3d 577 (2016). Thus, we follow
existing Washington law pursuant to Makekau.

                                                    9
No. 48116-2-II


       The note on use for the Washington Pattern Jury Instruction in place at the time of trial for

second degree identity theft recommends that the language specifying the $1,500 threshold “should

be used only for cases in which the crime of second degree theft is submitted to the jury as a lesser

offense, when the crime needs to be distinguished from the greater offense.” 11A W ASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL, 131.06, note on use at 561

(3d. ed. 2008)10 (WPIC).

              C. SUFFICIENT EVIDENCE SUPPORTS THE IDENTITY THEFT CONVICTION

       Here, in relevant part, the to-convict instruction for second degree identity theft stated,

              To convict the defendant of Identity Theft in the Second Degree as charged
       in Count I, the following elements of the crime must be proved beyond a reasonable
       doubt:
              ....
              (3)      That the defendant obtained credit, money, goods, services, or
                       anything else that is $1500 or less in value from the acts described
                       in element (1) or did not obtain any credit, money, goods, services,
                       or other items of value.

CP at 58.

       Second degree identity theft was not submitted as a lesser offense, but was the charged

offense. The to-convict instruction required the jury to find that the defendant obtained nothing or

something with a value of $1,500 or less. Neither Aquino nor the State objected to the instruction.

The State appears to agree that they bear the burden to prove the additional element. Thus, the to-

convict instruction is the law of the case. Hickman, 135 Wn.2d at 102.


10
   A comment on the updated WPIC for second degree identity theft states that “[t]he instruction
has been revised in this edition to eliminate the requirement that the State prove either that the
defendant obtained something that was $1,500 or less in value or that the defendant did not obtain
anything of value. Second degree identity theft does not require that the defendant obtain anything
of value.” 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL,
131.06, cmt. at 617 (4th. ed. 2016).

                                                 10
No. 48116-2-II


       The State offered proof in support of this added element. Gardner and Faucett testified that

they did not cash the check Aquino presented to Gardner: Gardner took the check to Faucett and

Faucett stated that she would not cash a check that looked fraudulent and notified her supervisors,

who called security. The casino surveillance video confirmed this testimony. At no point during

the video did any casino employee hand Aquino cash or return the check. The check was admitted

into evidence and contained no stamps or other markings indicating that it had been cashed.

       Based on this evidence, a rational jury could have found beyond a reasonable doubt that

Aquino obtained nothing of value in exchange for the forged check. Thus, we hold that sufficient

evidence existed to support Aquino’s conviction for second degree identity theft.11

                                      II. THE INFORMATION

       Aquino argues that the amended information was constitutionally deficient because the two

counts of bail jumping omitted the requirement that he knew he had to appear before a particular

court on two particular dates. Again, we disagree.12

                          A. STANDARD OF REVIEW AND RULES OF LAW

       We review de novo claims that an information omitted essential elements of a charged

crime. State v. Pittman, 185 Wn. App. 614, 619, 341 P.3d 1024, review denied, 184 Wn.2d 1021




11
   In his reply brief, Aquino analogizes this case to Division One’s unpublished decision in State
v. Lippincott, noted at 188 Wn. App. 1032 (2015). But Lippincott is unpersuasive. Unlike in our
case, the State conceded that none of the evidence established that Lippincott obtained nothing of
value by possessing the information. Lippincott, 2015 WL 4095289, at *3. Here, the State does
not concede that insufficient information established that Aquino received nothing of value from
the forged check that he attempted to cash.
12
  Notably, the State does not argue that under a liberal construction the allegedly missing elements
could be fairly implied in the information.

                                                11
No. 48116-2-II


(2015). An information is constitutionally deficient if it fails to list the essential elements of a

crime. State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013). The essential elements of the

crime are those that the prosecution must prove to sustain a conviction. State v. Peterson, 168

Wn.2d 763, 772, 230 P.3d 588 (2010). Requiring the State to list the essential elements in the

information protects the defendant’s right to notice of the nature of the criminal accusation

guaranteed by the United States and Washington Constitutions. Zillyette, 178 Wn.2d at 158.

       “Charging documents which are not challenged until after the verdict will be more liberally

construed in favor of validity than those challenged before or during trial.” State v. Kjorsvik, 117

Wn.2d 93, 102, 812 P.2d 86 (1991). We must consider the document as a whole to determine

whether “‘the necessary facts appear in any form, or by fair construction can be found within the

terms of the indictment.’” Kjorsvik, 117 Wn.2d at 104 (quoting Hagner v. United States, 285 U.S.

427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932)). A court should be guided by common sense and

practicality in construing the language, and thus missing elements may be implied if the language

supports such a result. State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995).

       If the necessary elements are not found or fairly implied, prejudice is presumed and reversal

is required. State v. Zillyette, 173 Wn.2d 784, 786, 270 P.3d 589 (2012). But if at least some

language, however vague, in the information gives the defendant notice of the allegedly missing

elements, we must determine whether the defendant was nonetheless prejudiced by any vague or

inartful language in the charge. Kjorsvik, 117 Wn.2d at 111.

              B. THE INFORMATION GAVE PROPER NOTICE OF THE CRIME CHARGED

       Here, even if we assume without deciding that specific locations and dates are essential

elements, Aquino’s argument fails because the charging document gave sufficient notice of the


                                                12
No. 48116-2-II


charges.13 Under a liberal reading, we are guided by common sense and practicality in construing

the language, and thus missing elements may be implied if the language supports such a result.

Campbell, 125 Wn.2d at 801.

       Here, the information stated,

               That JOHN PALACIOS AQUINO, in the State of Washington, on or about
       the 22nd day of January, 2015, did unlawfully and feloniously, having been held
       for, charged with, or convicted of Identity Theft in the Second Degree and/or
       Forgery, a class “B” or “C” felony, and been released by court order or admitted to
       bail with knowledge of the requirement of a subsequent personal appearance before
       any court in this state, fail to appear as required, contrary to RCW
       9A.76.170(1),(3)(c).

CP at 5 (emphasis added). The wording is identical for the other count of bail jumping aside from

the date, “the 18th day of March, 2015.” CP at 6.

       The information thus included the dates, January 22 and March 18, when Aquino failed to

appear. And the information included that the State had to prove Aquino had knowledge of such

requirement to appear.    We thus conclude that the allegedly missing element of Aquino’s

knowledge of the particular dates when he had to appear is implied by the information, if the

language is construed using common sense and practicality. Campbell, 125 Wn.2d at 801.

Additionally, the information was filed in the Superior Court of Washington for Pierce County and

issued by the Pierce County Prosecutor. We conclude that the allegedly missing element of

Aquino’s knowledge that he had to appear in Pierce County should also be implied. Campbell,

125 Wn.2d at 801.



13
  Additionally, if Aquino was unclear about the nature of the charges against him, he could have
requested a bill of particulars but failed to do so. CrR 2.1(c); see also State v. Nonog, 169 Wn.2d
220, 225 n.2, 237 P.3d 250 (2010) (holding that in some instances a vagueness challenge to a
constitutionally sufficient information may be waived by failure to request a bill of particulars).

                                                13
No. 48116-2-II


       We next determine whether the defendant was nonetheless prejudiced by any vague or

inartful language in the charge. Kjorsvik, 117 Wn.2d at 111. But Aquino failed to argue prejudice

except to say that if the trial court concluded that the elements were missing, prejudice should be

presumed. Prejudice is not presumed here because the necessary elements of the bail jumping

charges are fairly implied by the charging document. Zillyette, 173 Wn.2d at 786. Because Aquino

does not argue that he otherwise suffered prejudice, we hold that his claim fails. Kjorsvik, 117

Wn.2d at 111. Thus, we conclude that the information was not constitutionally deficient.

                                    III. MOTION TO DISMISS

       Aquino argues that the trial court erred when it denied his motion to dismiss or to suppress

Officer Tracy’s testimony because the State failed to disclose impeachment evidence thereby

prejudicing him. This argument is unavailing.

                         A. STANDARD OF REVIEW AND RULES OF LAW

       We review a trial court’s CrR 8.3(b) ruling for abuse of discretion. State v. Michielli, 132

Wn.2d 229, 240, 937 P.2d 587 (1997); State v. Brooks, 149 Wn. App. 373, 384, 203 P.3d 397

(2009). A trial court abuses its discretion when its decision is manifestly unreasonable or based

on untenable grounds. Michielli, 132 Wn.2d at 240; Brooks, 149 Wn. App. at 384.

       Relief under CrR 8.3(b) requires a showing of arbitrary action or governmental misconduct

and that such action prejudiced the defendant’s right to a fair trial. Brooks, 149 Wn. App. at 384.

Dismissal is an extraordinary remedy. State v. Rohrich, 149 Wn.2d 647, 653, 71 P.3d 638 (2003).

When reviewing a trial court’s decision regarding a dismissal of charges under CrR 8.3(b),

appellate courts must evaluate whether the trial court’s conclusions regarding both elements was

an abuse of discretion. Rohrich, 149 Wn.2d at 654.


                                                14
No. 48116-2-II


       A prosecutor’s decision not to disclose material evidence “favorable to an accused”

violates that defendant’s due process rights. Brady, 373 U.S. at 87. We review alleged due process

violations under Brady de novo. State v. Mullen, 171 Wn.2d 881, 893, 259 P.3d 158 (2011). To

establish a Brady violation, a defendant must demonstrate the existence of each of three elements:

(1) the evidence at issue must be favorable to the accused, (2) that evidence must have been

suppressed by the State, either willfully or inadvertently, and (3) prejudice must have ensued.

Mullen, 171 Wn.2d at 895.

             B. DENIAL OF MOTION TO DISMISS WAS NOT AN ABUSE OF DISCRETION

1.     IMPEACHMENT EVIDENCE FAVORABLE TO AQUINO

       Aquino argues that the Delgado evidence was impeachment evidence favorable to his

defense. The State argues that the trial court properly concluded that the Delgado evidence was

not impeachment evidence. We agree with Aquino that the Delgado evidence was potential

impeachment evidence.

       a.      RULE OF LAW

       Under Brady, the State must disclose impeachment evidence probative of witness

credibility if that evidence is favorable to the accused. Giglio v. United States, 405 U.S. 150, 153-

54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); and see United States v. Bagley, 473 U.S. 667, 676-78,

105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

       b.      DELGADO EVIDENCE WAS IMPEACHMENT EVIDENCE

       Here, Officer Tracy testified that after he read Aquino his Miranda rights, Officer Tracy

asked Aquino where he got the check. Aquino told Officer Tracy that he got the check in the mail.

When Officer Tracy asked about Aquino’s employer to learn more about how Aquino got the


                                                 15
No. 48116-2-II


check in the mail, Aquino said that he worked for the Paint Smith Company, but then said he

actually worked for a subcontractor.         And when asked for more information about the

subcontractor, Aquino could not provide his last job site, pay rate, or supervisor name. This

testimony related to Aquino’s guilt because it illustrated that Aquino could not explain how he got

the check, and thus prior instances of dishonesty by Officer Tracy could have been favorable

evidence for Aquino’s defense to lessen Officer Tracy’s credibility.

       In the Delgado case, in Officer Tracy’s signed and sworn police report, he states that he

stepped in front of Delgado’s car, that Delgado “drove [the car] directly toward” Officer Tracy,

and that Delgado would have hit Officer Tracy if he had remained where he stood. CP at 21. The

surveillance video shows Officer Tracy running to the passenger side of Delgado’s car, Delgado

driving forward past Officer Tracy with space between Officer Tracy and the car, and Officer

Tracy kicking at the car as it drives past him. Clarkson opined that the surveillance video

contradicted Officer Tracy’s version of events in his report, and she concluded that “[u]pon review

of the surveillance tape, the State does not have sufficient evidence to pursue the charge of Assault

in the Second Degree.” CP at 23.

       Based on this evidence, the trial court here concluded that

       in order for this to be impeachment evidence, it needs to be clear that somebody
       lied under oath,[14] somebody made a false representation under oath, and I am not
       going to find, based on the video that I just saw, based on the report that I have read
       . . . I’m not going to find that this officer lied.



14
   Neither party disputes the trial court’s legal conclusion here, but the trial court’s legal assertion
is incorrect. Impeachment evidence is not limited to evidence showing an individual lied under
oath, but includes other evidence that could assist the jury with a credibility determination in the
accused’s favor, including an offer of leniency to a State witness in exchange for testimony. See
State v. Soh, 115 Wn. App. 290, 295, 62 P.3d 900 (2003).

                                                  16
No. 48116-2-II


               Clearly, the video is at odds with his description of the event, but to find
       that he made a material misrepresentation or that he lied in the course of
       investigating this incident I think is more of a stretch than I’m going to make.
               . . . [A]ny time there is video, the video is almost always at odds with at
       least somebody’s description of the event. To find that everybody is lying who
       describes an event different than it appears in a video is, in my judgment, not
       something that’s appropriate, and I’m not going to make that kind of a finding in
       this case.

2 RP at 61-62. The trial court concluded that the Delgado evidence was not potential impeachment

evidence and denied Aquino’s motion to dismiss.

       There were no records in Officer Tracy’s file disciplining him for dishonesty during the

Delgado case or during any other incident. But the video appeared to contradict Officer Tracy’s

statement in the Delgado case.

       We hold that the Delgado evidence was potential impeachment evidence.15 We hold this

given the discrepancy between the report and the surveillance video and given the credence that

the prosecutor gave to that discrepancy when she dropped the assault charge. And thus, we hold

that this evidence was probative of Officer Tracy’s credibility and was therefore impeachment

evidence. Giglio, 405 U.S. at 153-54. We turn to analyze misconduct and prejudice below.




15
   In his reply brief, Aquino relies on Scott v. Harris, 550 U.S. 372, 378-81, 127 S. Ct. 1769, 167
L. Ed. 2d 686 (2007), for the proposition that in a summary judgment proceeding appellate courts
should not conclude that reasonable minds could disagree on an issue where video evidence in the
record discredits one party’s version of events. The State does not address this case. The Harris
Court held that where a video accurately depicts events, the lower court should have viewed the
facts in the light depicted in a video that captured events underlying a plaintiff’s claim. 550 U.S.
at 378-81. But the Harris Court was reviewing a motion for summary judgment. 550 U.S. at 378.
Thus, Harris is procedurally distinguishable from this case. However the reasoning that an
accurate depiction of events on video should be given its due weight is nonetheless relevant here.

                                                17
No. 48116-2-II


2.     ARBITRARY ACTION OR GOVERNMENTAL MISCONDUCT

       Aquino asserts that by failing to disclose the Delgado evidence, the State committed

misconduct. We agree.

       We review the trial court’s CrR 8.3(b) ruling for abuse of discretion. Brooks, 149 Wn.

App. at 384. Relief under CrR 8.3(b) “requires a showing of arbitrary action or governmental

misconduct, but the governmental misconduct need not be of an evil or dishonest nature; simple

mismanagement is enough.” Brooks, 149 Wn. App. at 384 (citing State v. Dailey, 93 Wn.2d 454,

457, 610 P.2d 357 (1980)). Violations of obligations under the discovery rules can support a

finding of governmental misconduct. See Brooks, 149 Wn. App. at 375-76.

       To establish a Brady violation, a defendant must demonstrate that evidence must have been

suppressed by the State, either willfully or inadvertently. Mullen, 171 Wn.2d at 895. The

prosecution cannot avoid its obligations under Brady by keeping itself ignorant of matters known

to other state agents, but it has no duty to independently search for Brady evidence. In re Pers.

Restraint of Brennan, 117 Wn. App. 797, 805, 72 P.3d 182 (2003).

       Here, Aquino asserts that the State committed a Brady violation. Clarkson and the

prosecutor in Aquino’s case both worked for the Pierce County Prosecutor’s office. And the State

was able to access the video from the Delgado case to bring it to the hearing on Aquino’s motion

to dismiss. Thus, we conclude that the Delgado evidence was within the control of the Pierce

County Prosecutor’s office and that the assigned prosecutor had a duty to actually learn about the

evidence. The prosecutor could not avoid its obligations under Brady by keeping itself ignorant

of the evidence in its office. Brennan, 117 Wn. App. at 805. We thus conclude that the State was

obligated to disclose the Delgado evidence. Giglio, 405 U.S. at 153-54. Violations of obligations


                                               18
No. 48116-2-II


under the discovery rules can support a finding of governmental misconduct. See Brooks, 149 Wn.

App. at 375-76. Accordingly, we hold that the trial court abused its discretion when it failed to

conclude that the State committed governmental mismanagement, amounting to misconduct, when

it did not disclose the Delgado evidence to Aquino.

3.     PREJUDICE

       Aquino argues that he was prejudiced by the State withholding the Delgado evidence

because the late discovery of the evidence inhibited his counsel’s ability to prepare for his

defense.16 We disagree.17

       The defendant must show that the State’s governmental misconduct prejudiced his right to

a fair trial. Brooks, 149 Wn. App. at 384. Such prejudice includes the right to be represented by

counsel who has had sufficient opportunity to adequately prepare a material part of his defense.

Brooks, 149 Wn. App. at 384 (quoting Michielli, 132 Wn.2d at 240). CrR 8.3(b) exists “to see that

one charged with crime is fairly treated.” State v. Whitney, 96 Wn.2d 578, 580, 637 P.2d 956

(1981) (emphasis added); see also Michielli, 132 Wn.2d at 245-46 (holding a defendant was

prejudiced where the State’s delay in bringing serious charges until only five days before the




16
   Aquino also argues that the State’s failure to disclose the Delgado evidence was prejudicial
because Officer Tracy’s testimony could have altered the jury’s verdict regarding his fraud and
identity theft charges. But Aquino does not include any argument about how the State’s failure to
disclose the Delgado evidence had any effect on the trial when Aquino had the Delgado evidence
in his possession before and at trial.
17
   Here, the trial court did not rule on Aquino’s arguments of prejudice related to the CrR 8.3(b)
motion to dismiss. But this court can review the pleadings and record before the trial court to
determine whether a defendant successfully supported his CrR 8.3(b) claim in order to determine
if the trial court abused its discretion in granting or denying the motion. Michielli, 132 Wn.2d at
242.

                                                19
No. 48116-2-II


scheduled trial forced the defendant to waive his speedy trial right in order to ask for a continuance

to prepare his defense).

       In his motion to dismiss, Aquino argued that the State’s misconduct prejudiced Aquino

because “at this moment, no one is scheduled to testify on the exculpatory matter.” CP at 10. This

was the sum of defense counsel’s prejudice argument to the trial court.

       Before trial, Aquino’s counsel had the Delgado evidence that he argues the State should

have disclosed to him before trial. At the dismissal hearing, defense counsel noted that he had

been in contact with the prosecutor from the Delgado case, Clarkson, and confirmed that she could

testify then or the following week. Aquino fails to explain how his counsel was not adequately

prepared to present his defense.18 He had the Delgado evidence before trial, he had secured a

witness to introduce the evidence, and he had a defense strategy to impeach Officer Tracy with the

evidence. Aquino fails to show that his counsel had insufficient time to adequately prepare a

material part of his defense.

       We conclude that Aquino fails to establish that his “late discovery” of the Delgado

evidence prejudiced his right to a fair trial. Dismissal under CrR 8.3(b) is an extraordinary remedy.

Rohrich, 149 Wn.2d at 653. We conclude that Aquino has failed to carry the burden to prove that

the trial court abused its discretion when it denied his dismissal motion.19



18
   And because Aquino’s counsel did not move to continue the trial date, the record does not
establish whether a continuance would have implicated Aquino’s speedy trial right.
19
   Alternatively, Aquino argues that the trial court should have suppressed Officer Tracy’s
testimony for the same reasons he argues the trial court should have granted his motion to dismiss.
But Aquino offers little analysis between his two briefs to explain why suppression of Officer
Tracy’s testimony was warranted. Because Aquino was not prejudiced, we hold that the trial court
did not abuse its discretion when it declined to suppress Officer Tracy’s testimony as an alternative
to dismissal.
                                                  20
No. 48116-2-II


                                      IV. APPELLATE COSTS

       Aquino argues that if the State substantially prevails on appeal and makes a request for

costs, we should decline to impose costs because he is indigent. The State argues that costs may

be appropriate to impose on the appellant, but that the procedure invented by State v. Sinclair, 192

Wn. App. 380, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016), raises the issue prematurely.

We exercise our discretion and decline to impose appellate costs.

       Under RCW 10.73.160(1), we have broad discretion whether to grant or deny appellate

costs to the prevailing party. State v. Nolan, 141 Wn.2d 620, 625, 8 P.3d 300 (2000). Under RAP

14.2, we may exercise that discretion in a decision terminating review. We presume that a party

remains indigent “throughout the review” unless the trial court finds otherwise. RAP 15.2(f). We

make an individualized inquiry in the review of appellate costs. Sinclair, 192 Wn. App. at 391.

       The trial court entered an order of indigency. In the judgment and sentence, the trial court

noted that Aquino was indigent and lacked prospects for future income. Aquino explained to the

trial court that his daughter had a serious medical condition that created a significant hardship for

his family. As a result, Aquino’s wife worked full time and Aquino helped care for his daughter

and their other three children. Aquino had not worked in quite some time, but when he did work,

he worked as a roofer. Aquino stated that he would look for work once released. He was sentenced

to 10 months. Thus, we hold that an award of appellate costs to the State is not appropriate. RCW

10.73.160(1); RAP 15.2(f); RAP 14.2.




                                                 21
No. 48116-2-II


        We affirm.

        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.



                                                    JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MELNICK, J.




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