                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 24, 2015



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II
 STATE OF WASHINGTON,                                              No. 45374-6-II

                                Respondent,

        v.

 ZYION HOUSTON-SCONIERS,                                          consolidated with

                                Appellant.

 STATE OF WASHINGTON,                                              No. 45414-9-II

                                Respondent,

        v.

 TRESON LEE ROBERTS,                                              consolidated with

                                Appellant.

 In re the Personal Restraint Petition of:                         No. 47085-3-II

 ZYION HOUSTON-SCONIERS,

                               Petitioner,                 PUBLISHED IN PART OPINION




       MELNICK, J. — Zyion Houston-Sconiers and Treson Roberts were jointly prosecuted for a

series of robberies and other crimes committed on Halloween when they were both under the age

of 18. They appeal their convictions, arguing that the “automatic decline” statute, RCW 13.04.030,
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which mandated that they be tried as adults and not juveniles, is unconstitutional under recent

federal Eighth Amendment jurisprudence. In the published portion of this opinion, we hold that

RCW 13.04.030 does not violate the Eighth Amendment’s prohibition against cruel and unusual

punishment.

       In the unpublished portion of this opinion, we address Houston-Sconiers’s and Roberts’s

additional arguments, including that (1) the trial court violated their right to confront witnesses

against them by admitting an out-of-court statement made by a witness who did not testify at trial;

(2) insufficient evidence supported their assault in the second degree convictions and all of their

firearm sentence enhancements; (3) prosecutorial misconduct deprived them of a fair trial; and (4)

the trial court erred by imposing discretionary legal financial obligations (LFOs) without

considering their individual ability to pay.

       Additionally, Houston-Sconiers asserts in a personal restraint petition (PRP) that the trial

court erred by refusing to grant him an evidentiary hearing on his motion to suppress evidence, by

depriving him of his right to be present at every critical stage of the trial, and by denying his

proposed missing witness instruction. He also makes additional allegations of prosecutorial

misconduct.

       We hold that admittance of the challenged out-of-court statement did not violate Houston-

Sconiers’s and Roberts’s right to confront witnesses against them because the statement was

nontestimonial; sufficient evidence supports their assault convictions and all of their firearm

sentence enhancements; prosecutorial misconduct did not deprive them of a fair trial; and, the trial

court did not err by imposing discretionary LFOs because it engaged in the required individualized

inquiry about Houston-Sconiers’s and Roberts’s ability to pay. Accordingly, we affirm the trial

court. We also deny Houston-Sconiers’s PRP.



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                                             FACTS

RCW 13.04.030 —“AUTOMATIC DECLINE” STATUTE

       Houston-Sconiers and Roberts were charged with and ultimately convicted of numerous

crimes, including multiple robberies in the first degree. At the time they committed the crimes,

Houston-Sconiers and Roberts were 17- and 16-years-old respectively; however, they were tried

in adult court because of the nature of the offenses with which they were charged. See RCW

13.04.030(1)(e)(v)(C).1 Adult court had exclusive jurisdiction over them.

       Houston-Sconiers was convicted of six counts of robbery in the first degree, one count of

assault in the second degree, one count of conspiracy to commit robbery in the first degree, and

one count of unlawful possession of a firearm. The jury specially found that Houston-Sconiers

was armed with a firearm during five of the six robberies, the assault, and the conspiracy. Roberts

was convicted of four counts of robbery in the first degree, one count of assault in the second

degree, and one count of conspiracy to commit robbery in the first degree. The jury specially

found that Roberts was armed with a firearm during those crimes.

       The trial court followed the State’s recommendation and sentenced Houston-Sconiers to

an exceptional sentence of zero months’ confinement for each count. It imposed the mandatory

372 months’ confinement for the seven firearm sentence enhancements. The trial court also

followed the State’s recommendation with respect to Roberts. It sentenced him to an exceptional

sentence of zero months’ confinement for each count. It imposed the mandatory 312 months’

confinement for the six firearm sentence enhancements.




1
  Under RCW 13.04.030(1)(e)(v)(C), adult court has exclusive jurisdiction over juveniles who are
16- or 17-years-old on the date of the alleged offense when they commit certain alleged offenses,
including robbery in the first degree.


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                                            ANALYSIS

          Houston-Sconiers and Roberts argue that the automatic decline statute in combination with

statutorily-mandated sentencing enhancements violate both the due process clause2 and the Eighth

Amendment to the United States Constitution. They specifically argue that juveniles are treated

like adults without an individualized inquiry into the nature of the offenses and the maturity of the

juveniles.

          Houston-Sconiers and Roberts acknowledge that our Supreme Court has previously upheld

the automatic decline statute’s constitutionality in In re Boot, 130 Wn.2d 553, 925 P.2d 964 (1996),

but they argue that the reasoning on which the court relied has been rejected. They rely primarily

on a series of United States Supreme Court cases that address how the Eighth Amendment’s ban

on cruel and unusual punishment applies to sentencing juveniles: Roper v. Simmons, 543 U.S. 551,

568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011,

176 L. Ed. 2d 825 (2010); Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012).

          In Roper, the Court held that the Eighth Amendment prohibits courts from imposing the

death penalty for crimes committed while a juvenile. 543 U.S. at 568. Then in Graham, the Court

held that the Eighth Amendment prohibits a court from imposing a sentence of life without parole




2
 Houston-Sconiers and Roberts make no arguments relying on the state constitution; therefore,
we will only consider federal constitutional law. See In re Boot, 130 Wn.2d 553, 570 n.9, 925
P.2d 964 (1996).


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on a juvenile offender for a crime that is not a homicide. 560 U.S. at 82. Two years later, in

Miller, 132 S. Ct. at 2460, the Court held that mandatory life-without-parole sentences for juvenile

offenders also violates the Eighth Amendment. Miller requires courts to engage in “individualized

consideration” of juvenile offenders facing life in prison without the possibility of parole. 132 S.

Ct. at 2469-70. According to the Court, “[b]y making youth (and all that accompanies it) irrelevant

to imposition of that harshest prison sentence, such a scheme poses too great a risk of

disproportionate punishment.” Miller, 132 S. Ct. at 2469. The Supreme Court recognized three

general differences between juveniles and adults. First, juveniles lack maturity and have an

underdeveloped sense of responsibility, which leads to “recklessness, impulsivity, and heedless

risk-taking.” Miller, 132 S. Ct. at 2464. Second, juveniles are more vulnerable or susceptible to

negative influences and outside pressures, including peer pressure; they have limited control over

their own environment and lack the ability to extricate themselves from horrific, crime-producing

settings. Third, the character of a juvenile is not as well formed as that of an adult; a juvenile’s

actions are less likely to be evidence of irretrievable depravity. Miller, 132 S. Ct. at 2464.

       Houston-Sconiers and Roberts contend that these cases undermine Boot’s Eighth

Amendment analysis. In Boot, our Supreme Court held that the automatic decline statute did not

violate the Eighth Amendment, or either procedural or substantive due process under the federal

constitution. 130 Wn.2d at 568-72. Because the defendants had neither been tried nor sentenced,

the court concluded it could not scrutinize the case under the Eighth Amendment’s ban on cruel




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and unusual punishment. Boot, 130 Wn.2d at 569. The court proceeded to state that the only

possible Eighth Amendment issue before it related to the claim that adult court jurisdiction in and

of itself constitutes punishment. Boot, 130 Wn.2d at 569. Our Supreme Court noted that although

the parties advanced no support for such an assertion, if they did, they would have to contend with

the contrary holding of State v. Massey, 60 Wn. App. 131, 803 P.2d 340 (1990). Boot, 130 Wn.2d

at 569. In Massey, we rejected an Eighth Amendment challenge to a life imprisonment without

parole sentence for a 13 year old. 60 Wn. App. at 145-46. We reasoned that the test for whether

a sentence is cruel and unusual under the Eighth Amendment balances the crime committed and

the sentence imposed but does not consider the defendant’s age. Massey, 60 Wn. App. at 145.

       Eighth Amendment jurisprudence has evolved since Boot and Massey. It is now clear that

age may be considered in an Eighth Amendment challenge. Graham, 560 U.S. at 76. Although

we recognize the referenced portion of Massey is no longer good law, the remainder of the court’s

analysis in Boot is still valid. In other words, a successful Eighth Amendment challenge to the

automatic decline statute still requires a defendant to show that this method of asserting adult court

jurisdiction, in and of itself, is punishment; however, Houston-Sconiers and Roberts do not make

this showing.

       Boot also held that application of the automatic decline statute does not violate the

substantive due process rights of defendants. 130 Wn.2d at 571-72. Houston-Sconiers and Roberts

argue that Roper, Graham, and Miller undercut Boot’s holding that the automatic decline statute

does not violate substantive due process. Neither Roper, Graham, nor Miller considered due




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process arguments; therefore, they do not undermine Boot’s holding on substantive due process.3

       Houston-Sconiers and Roberts’s entire argument is that Boot is undermined. Even if Boot’s

rationale is undermined to a degree that Boot no longer controls, Houston-Sconiers and Roberts

would still need to demonstrate that their sentences violated the Eighth Amendment, either because

the sentences were grossly disproportionate to all the circumstances of the particular cases, i.e.,

the gravity of the offenses is grossly disproportionate to the sentence, or because the sentences fit

within a categorical restriction which is based on the nature of the offense or the characteristics of

the offender. See Graham, 560 U.S. at 59-60; see also Miller, 132 S. Ct. at 2463. Houston-

Sconiers and Roberts never explain how their sentences violate due process or the Eighth

Amendment’s prohibition against “cruel and unusual” punishment. U.S. CONST. amend. VIII.




3
  However, we note that Boot’s substantive due process analysis does appear to be based on the
outdated understanding that juveniles’ lessened culpability was relevant only in capital cases. The
defendant in Boot relied on Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S. Ct. 2687, 101 L.
Ed. 2d 702 (1988), in which the United States Supreme Court held that the Eighth Amendment
prohibited the execution of a person who was under 16 years old at the time of his or her offense.
Boot, 130 Wn.2d at 571. The Thompson Court also endorsed the proposition that juveniles are
less culpable than adults who commit comparable crimes. 487 U.S. at 835. Our Supreme Court
concluded that the Thompson reasoning applied only to capital cases and refused to apply it to
crimes not calling for the death penalty because the death penalty was thought to be qualitatively
different from a sentence of imprisonment, even life imprisonment without parole. Boot, 130
Wn.2d at 572. Since Boot, the United States Supreme Court has incrementally expanded the
Thompson rationale to categorically ban the death penalty for crimes committed as a juvenile, life
without parole for a non-homicide crime committed as a juvenile, and mandatory life without
parole sentences for any juvenile offenders. Miller, 132 S. Ct. at 2460; Graham, 560 U.S. at 76;
Roper, 543 U.S. 568-75.
        Although the United States Supreme Court has expanded categorical restrictions on certain
punishments for juveniles due to evolving standards of decency, the expansions are narrow and
focus on the most severe punishments: the death penalty and life without the possibility of parole.
Life-without-parole sentences “‘share some characteristics with death sentences that are shared by
no other sentences.’” Miller, 132 S. Ct. at 2459 (quoting Graham, 560 U.S. at 69). Therefore,
Boot’s substantive due process analysis is still valid, i.e., the special treatment of juveniles is
limited to the express categorical rules espoused by the United State Supreme Court.



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       We reject Houston-Sconiers and Roberts’s assertion that Roper, Graham, and Miller stand

for the proposition that any sentencing statute that automatically treats a juvenile the same as an

adult is unconstitutional. Roper, Graham, and Miller do not prohibit adult court from exercising

exclusive jurisdiction over older juveniles who commit robbery in the first degree. Nor do they

prohibit juveniles from being subject to generally applicable criminal sentencing laws unless they

implicate the death penalty, life without the possibility of parole for non-homicide crimes, or

mandatory life without the possibility of parole for any juvenile offenders.

       In so holding, we are aware that the legislature’s enactment of the automatic decline statute

predated much of the research and data relied on by the Supreme Court in Roper, Graham, and

Miller. “These studies reveal fundamental differences between adolescent and mature brains in

the areas of risk and consequence assessment, impulse control, tendency toward antisocial

behaviors, and susceptibility to peer pressure.” State v. O'Dell, No. 90337-9, 2015 WL 4760476,

at *6 (Wash. Aug. 13, 2015). We are also aware that many of these factors are not present in this

case. Although it may be time for the legislature to take another look at the automatic decline

statute, we recognize it is the role of the legislative branch of government to make these types of

policy decisions. We join the Illinois Supreme Court in urging our legislature to review our

automatic decline statute utilizing current scientific and sociological evidence, which indicates a

need for the exercise of judicial discretion in determining the appropriate setting for juvenile cases.

That court stated:

               We do, however, share the concern expressed in both the Supreme Court's
       recent case law and the dissent in this case over the absence of any judicial
       discretion in Illinois's automatic transfer provision. While modern research has
       recognized the effect that the unique qualities and characteristics of youth may have
       on juveniles' judgment and actions, the automatic transfer provision does not.
       Indeed, the mandatory nature of that statute denies this reality. Accordingly, we
       strongly urge the General Assembly to review the automatic transfer provision
       based on the current scientific and sociological evidence indicating a need for the


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       exercise of judicial discretion in determining the appropriate setting for the
       proceedings in these juvenile cases.

People v. Patterson, 2014 IL 115102, 25 N.E.3d 526, 553, 388 Ill Dec. 834, reh'g denied (Jan. 26,

2015) (internal citations omitted).

       Unlike the defendants in Roper, Graham, and Miller, Houston-Sconiers and Roberts were

not sentenced to death or life without the possibility of parole. On the contrary, the trial court

exercised its discretion and imposed exceptional sentences well below the standard ranges. It

sentenced Houston-Sconiers and Roberts to zero months’ confinement for the crimes themselves

and imposed confinement for only the mandatory firearm sentence enhancements.

       Houston-Sconiers received a sentence of 372 months’ confinement for the mandatory

firearm sentence enhancements on six counts of robbery in the first degree, one count of conspiracy

to commit robbery in the first degree, one count of assault in the second degree, and one count of

unlawful possession of a firearm. Roberts received a sentence of 312 months’ confinement for the

mandatory firearm sentence enhancements on four counts of robbery in the first degree, one count

of conspiracy to commit robbery in the first degree, and one count of assault in the second degree.

       The trial court sentenced both Houston-Sconiers and Roberts to confinement well short of

the most severe punishments at issue in Roper (death penalty), Graham (life without parole), and

Miller (life without parole). Houston-Sconiers and Roberts fail to show that their sentences, which

were exceptional sentences below the standard range, constitute cruel and unusual punishment or

otherwise violate the Eighth Amendment or due process.

       In light of the presumption of constitutionality accorded to our legislature's enactments,

State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013), we hold that application of RCW

13.04.030(1)(e)(v) along with mandatory sentence enhancements does not violate the Eighth

Amendment under the dictates of Roper, Graham, and Miller. We affirm.


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       A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2.06.040, it is so ordered.

                                              FACTS

       Brothers Andrew and Steven Donnelly went trick-or-treating in Tacoma on October 31,

2012. Andrew, 19 years old, wore a graduation robe and a red devil mask. He collected candy in

an orange cloth bag with a picture of a pumpkin on it. His 13-year-old brother, Steven, dressed as

a ninja, collected candy in a black, blue, and gray backpack.

       At approximately 9:00 P.M., in the area of South Sheridan, three young black men wearing

dark clothing approached the Donnelly brothers. One of the young men wore a “white hockey

mask,” the second wore a black cloth mask, and the third wore a blue bandanna that obscured his

mouth and lower face. 12 Report of Proceedings (RP) at 1004. The one with the hockey mask

said “this is a stick-up” and pointed a silver gun with white grips at Steven’s face. 12 RP at 992.

The young men told Andrew and Steven to hand over their bags. The young men took the bags

and Andrew’s red devil mask, and then ran away.

       The Donnelly brothers returned to their grandparents’ house and called the police. The

911 call occurred at 9:28 P.M. A responding police officer interviewed Andrew and Steven. She

then broadcasted the suspects’ descriptions because she thought the robbery might be related to

other recent reports of robberies.

       A group of five friends—Destinae Peterson-Mims, Ishaiah Greene, Edward Bradley,

Axsaulis Guice, and Ronald Jones—also went trick-or-treating in Tacoma that evening. At

approximately 9:00 P.M., near the area of Stadium High School and Wright Park, three masked




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young black men wearing dark clothing approached the group.4 One of the young men, who wore

a white mask and dark clothing, pointed a silver revolver at the group. The young man with the

gun told the group that it was a “stickup” or robbery and demanded everything, including their

bags of candy and cellular phones. 11 RP at 820. Guice recognized this man’s voice as a person

she knew by the name “Tiny,” who was later identified as Houston-Sconiers. 11 RP at 824.

Another young man wore a red mask and two of the young men in the group had blue bandannas

tied on their pants.

        Guice hid her backpack with her body, backed away, and walked to a neighboring house

to get help. Peterson-Mims handed over the black silky pillow case she had been using to collect

candy and she then followed Guice. Jones ran off and hid in some bushes while Bradley and

Greene relinquished their backpacks. The assailants ran away, and then Bradley, Greene, and

Jones joined Peterson-Mims and Guice at the nearby house. Peterson-Mims’s parents picked up

some of the group. Peterson-Mims’s father called 911 to report the robbery at 9:32 P.M. An officer

responded and interviewed Peterson-Mims and Guice.

        Less than an hour later, at 10:22 P.M., James Wright called 911 to report that he had been

robbed. Officer Rodney Halfhill responded within a few minutes of the call from dispatch. When

Officer Halfhill approached Wright’s location, Wright was jumping up and down and waving his

arms, pointing and saying, “[T]hey’re over there. They ran over there.” 12 RP at 1069. Officer

Halfhill described Wright as a 37-year-old black man. Officer Halfhill immediately called for

police units to set up containment and asked for a K-9 unit to respond. Officer Halfhill then

interviewed Wright at the scene.



4
 Greene testified that he and his friends were approached by a group of five men: three men came
forward and two stayed back.


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       Wright told Officer Halfhill that while talking on his cellular phone and walking down the

street in front of an apartment building, he saw four or five black men go through the apartment

buildings and into the courtyard. He heard them approach him from behind and he turned around.

One of the men, who wore a black hooded sweatshirt with a gray emblem on the front and a

“Halloween Jason-style hockey mask,” pulled out a silver revolver and demanded Wright’s

cellular phone. 12 RP at 1074. Wright complied.

       The K-9 tracking team responded and led officers down an alley to a Cadillac parked in

Dorothy Worthey’s backyard. Its windows were fogged over, so officers used flashlights to look

inside the Cadillac. They saw several people. The officers ordered everyone out of the Cadillac.

Five young black men exited the Cadillac and were taken into custody: Houston-Sconiers, Roberts,

Zion Johnson, LeShawn Alexander, and Amancio Tolbert.

       Houston-Sconiers wore a dark gray vest over a dark blue long-sleeved thermal shirt, black

pants, and a hat that looked like the hood of a sweatshirt. Roberts wore a black windbreaker jacket,

a white t-shirt, gray pants, and had a blue bandanna in his possession. Thirteen-year-old Johnson

wore a black nylon hooded jacket, black jeans, and a do-rag. He had a blue bandanna and two

cellular phones in his actual possession. Alexander wore gray jeans and a gray sweatshirt with

some sort of graphic on it. Tolbert wore a blue hoodie-type sweater, a Florida Gators shirt, and

dark pants.

       The homeowner, Worthey, approached the officers and consented to a search of the

Cadillac parked in her yard.5 Worthey told an officer that the car belonged to her son, but that it



5
  Worthey knew Roberts and recognized some of the other young men, including Houston-
Sconiers, as friends of her grandson. Although she did not give them permission to be in the
Cadillac, her grandson and his friends had used the Cadillac as a hangout spot in the past.



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had not been moved for some time because it was in disrepair. Inside the Cadillac, officers found

a black cloth hood, three backpacks, a red plastic devil mask, a white plastic mask, and a silver

revolver under the front passenger seat.

       All five of the young men were initially charged with multiple counts of robbery. 6 The

State charged both Houston-Sconiers and Roberts with seven counts of robbery in the first degree,

one count of assault in the second degree, one count of conspiracy to commit first degree robbery,

and one count of unlawful possession of a firearm. The State also alleged that Houston-Sconiers

and Roberts were armed with a firearm during the commission of the robberies, the assault, and

the conspiracy.

       Houston-Sconiers and Roberts moved to suppress the evidence found in the Cadillac, but

the trial court denied the motion. More information about that motion will be provided in the

analysis section.

       When Houston-Sconiers and Roberts learned that Wright would not testify at trial,

Houston-Sconiers’s counsel moved to exclude the statement Wright made to Officer Halfhill. The

motion was based on a claimed violation of the right to confront witnesses.7 The trial court denied

the motion and ruled that Wright’s statement to Officer Halfhill that described being robbed was

nontestimonial. The trial court ruled that admitting Wright’s statement, even though he would not

be present to testify, did not violate Houston-Sconiers’s and Roberts’s right to confront witnesses



6
  Johnson pled guilty to two counts of robbery in the first degree. Afterward, the court granted
Johnson immunity so that he would be available to testify at Houston-Sconiers and Roberts’s trial.
All of the charges against Tolbert and Alexander were dismissed, and the trial court also granted
them immunity so that they would be available to testify at trial.
7
  Houston-Sconiers and Roberts argue that admitting the statements violated their Sixth
Amendment right to confront a witness. U.S. CONST. amend. VI; Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).


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against them. At trial, Officer Halfhill related to the jury Wright’s statement describing the

robbery, including descriptions of the suspects.

       The State also called Alexander to testify at trial about the events of October 31, 2012.

Alexander testified that he met up with Tolbert in the late afternoon and then eventually went to

Roberts’s house where he and Tolbert met up with Roberts, Houston-Sconiers, and some other

people. The group smoked marijuana, drank vodka, and played basketball for two or three hours.

Alexander, Tolbert, Johnson, Houston-Sconiers, and Roberts then walked to a nearby elementary

school. Houston-Sconiers wore a “Jason mask”; i.e., a white hockey mask. 16 RP at 1447.

       Alexander and Tolbert split off from the group. They went to several stores and restaurants

before meeting back up with Houston-Sconiers, Roberts, and Johnson later that evening. When

Alexander and Tolbert met up with the group again, Roberts had a devil mask and Johnson had a

backpack with candy inside that they did not have at the elementary school. Houston-Sconiers,

Roberts, and Johnson told Alexander that they had been in the north end of Tacoma.

       Alexander testified that the group of five walked towards Roberts’s house. On the way,

they saw a middle-aged black man talking on his cell phone near some apartments. Roberts and

Houston-Sconiers said something like, “[W]e’re about to get him,” and ran up to the man. 16 RP

at 1453. Houston-Sconiers demanded the man’s cellular phone, which he handed over. During

the encounter, Houston-Sconiers had a silver revolver, and both he and Roberts wore masks.

       According to Alexander, Houston-Sconiers and Roberts ran away from the scene, and he,

Johnson, and Tolbert followed in the same general direction. As Alexander walked away, he

watched the same man they saw with Houston-Sconiers and Roberts make a call on a different

cellular phone. Alexander alerted the others that he thought the man was calling the police. All




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five young men retreated to the Cadillac parked in Worthey’s backyard. Within 5 or 10 minutes,

the police arrived and ordered the group out of the Cadillac.

       Andrew and Steven Donnelly testified at trial and identified one of the backpacks and the

red devil mask found in the car as items taken from them. Peterson-Mims, Greene, Bradley, and

Guice also testified at trial. Guice identified the red devil mask found in the car as the one worn

by one of the men who accosted her and her friends. The State also called Johnson and Tolbert to

testify, but they were mostly uncooperative.8

       Detective Brian Vold testified that he tested the revolver found in the Cadillac and it fired

properly. His testimony will be explained in more detail in the analysis section.

       Over Houston-Sconiers’s objection, the trial court admitted a cellular phone video that

depicted Houston-Sconiers in possession of a firearm similar to the one used in the charged

robberies and found in the Cadillac. The video was taken a few weeks before Halloween, and it

appears that it was shot in a car resembling the Cadillac. The trial court instructed the jury that the

video may not be used as evidence of prior misconduct. The State also admitted excerpts of

recorded jail phone calls between Houston-Sconiers and unidentified persons. In one of the

excerpts, Houston-Sconiers complains about people snitching on him, including Tolbert.

       At the close of the State’s case-in-chief, the State conceded that it presented insufficient

evidence of robbery in the first degree as charged in count VIII and stipulated to its dismissal for



8
  Johnson testified that he did not commit any robberies and then answered “I don’t know” to most
of the questions asked of him. See RP at 1088-1092. Tolbert testified that he was at Roberts’s
house early in the evening, but he did not remember what occurred between then and when he was
arrested in the Cadillac later that night. But he also testified that he did not rob anyone or see
anyone with a gun. Later, he corrected himself and testified that he did not remember if he robbed
anyone. When asked about a previous statement that was inconsistent with his testimony, he said
that the earlier statement he gave to detectives was a lie. He explained that he had read Alexander’s
proffer, memorized it, and repeated it back to gain a “get-out-of-jail-free card.” 18 RP at 1823.


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both Houston-Sconiers and Roberts. Houston-Sconiers and Roberts moved to dismiss the rest of

the charges against them for lack of proof. The trial court denied the motions.

         Roberts called his twin brother, Tredell Roberts, and his girlfriend, Shantell Bush, to

testify. Roberts’s brother and Shantell testified that Roberts was home from early afternoon until

9:00 or 9:30 P.M. Houston-Sconiers rested without putting on a case.

         Houston-Sconiers and Roberts proposed a missing witness instruction related to Wright,

but the trial court declined to give the instruction.

         Houston-Sconiers and Roberts objected and alleged prosecutorial misconduct throughout

the State’s closing and rebuttal arguments. The details of those objections will be provided in the

analysis section.

         The jury found Roberts not guilty of two counts of robbery in the first degree (counts I &

II)9 and unlawful possession of a firearm (count XI), and guilty of four counts of robbery in the

first degree (counts III, IV, V, IX), assault in the second degree (count VI), and conspiracy to

commit robbery in the first degree (count X). The jury answered affirmatively that Roberts was

armed with a firearm during the four robberies, the assault, and the conspiracy. The jury found

Houston-Sconiers guilty as charged and answered affirmatively that he was armed with a firearm

during five of the six robberies, the assault, and the conspiracy.10

         The trial court adopted the State’s recommendation and sentenced Houston-Sconiers to an

exceptional sentence below the standard range of zero months’ confinement for each count, and it

imposed the mandatory 372 months’ confinement for the seven firearm sentence enhancements.


9
    The jury found Roberts not guilty of robbing the Donnelly brothers.
10
  The jury was not given or did not fill out a special verdict form as to the robbery charged in
count IX for Houston-Sconiers.



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The trial court also imposed mandatory and discretionary LFO’s.               It adopted the State’s

recommendation with respect to Roberts and sentenced him to an exceptional sentence below the

standard range of zero months’ confinement for each count, and it imposed the mandatory 312

months’ confinement for the six firearm sentence enhancements. It also imposed mandatory and

discretionary LFOs.

       Houston-Sconiers and Roberts appeal their convictions and sentences.

                                            ANALYSIS

I.     RIGHT TO CONFRONT WITNESSES

       Houston-Sconiers and Roberts11 argue that the trial court violated their right to confront

witnesses against them by admitting Wright’s out-of-court statement. Roberts also argues that his

trial counsel’s failure to raise the confrontation issue constitutes ineffective assistance of counsel.

The State argues that the trial court properly admitted Wright’s statement because it was

nontestimonial and otherwise admissible under the excited utterance exception to the hearsay

rule.12 We agree with the State.

       We review constitutional issues, such as potential violations of the Sixth Amendment right

to confront witnesses, de novo. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014). The Sixth




11
   Roberts did not object to Wright’s statement, and therefore, he may not raise the issue for the
first time on appeal. Roberts does not allege that the issue is a manifest error affecting a
constitutional right, which would allow him to raise the issue for the first time on appeal. See RAP
2.5(a)(3); State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007), overruled on other grounds
by State v. Jasper, 174 Wn.2d 96, 271 P.3d 876 (2012).
12
  A confrontation clause analysis is separate from analysis under the rules of evidence. Crawford,
541 U.S. at 51. Houston-Sconiers and Roberts do not assign error to the trial court’s ruling that
Wright’s out-of-court statements fit within the excited utterance hearsay exception.



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Amendment guarantees criminal defendants the right to confront the witnesses against them.13

U.S. CONST. amend. VI.

       A defendant claiming ineffective assistance of counsel has the burden to establish both that

counsel’s representation was deficient and that the representation prejudiced the defendant’s case.

Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Failure to establish either prong is fatal to an

ineffective assistance of counsel claim. Strickland, 466 U.S. at 700. A lawyer’s representation is

deficient if after considering all of the circumstances, it falls “below an objective standard of

reasonableness.” Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 688). Deficient

representation prejudices a defendant if there is a “reasonable probability that, but for counsel’s

deficient [representation], the outcome of the proceedings would have been different.” State v.

Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Because Roberts bases his ineffective assistance

of counsel claim on his lawyer’s failure to object to Wright’s testimony on confrontation clause

grounds, he must show that the objection would have likely succeeded. State v. Gerdts, 136 Wn.

App. 720, 727, 150 P.3d 627 (2007).

       The confrontation clause “‘bars admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.’” State v. Ohlson, 162 Wn.2d 1, 10, 168 P.3d 1273 (2007)

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

(internal quotation marks omitted). In Davis, 547 U.S. at 822, the United States Supreme Court


13
   The Washington Constitution similarly provides a criminal defendant the right “to meet the
witnesses against him face to face.” WASH. CONST. art I, § 22. The parties do not argue that the
state constitution provides stronger confrontation rights than the federal constitution. Accordingly,
we analyze Houston-Sconiers’s and Roberts’s claims solely under the federal confrontation clause.



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explained that within the context of police interrogations, whether statements are “testimonial” is

determined by the primary purpose of the interrogation.

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency. They
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to establish
       or prove past events potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822.

       In evaluating the primary purpose of the interrogation, courts objectively evaluate the

circumstances of the encounter and the statements and actions of the parties to the encounter.

Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). “[W]hether an

emergency exists and is ongoing is a highly context-dependent inquiry.” Bryant, 562 U.S. at 364,

364. But an interaction with the police can evolve from “‘an interrogation to determine the need

for emergency assistance’” into testimonial statements “if a perpetrator is disarmed, surrenders, is

apprehended, or . . . flees with little prospect of posing a threat to the public.” Bryant, 562 U.S. at

365 (citing Davis, 547 U.S. at 8228-29).

       Our Supreme Court identified four factors to consider when determining whether an out-

of-court statement is testimonial: “(1) the timing relative to the events discussed, (2) the threat of

harm posed by the situation, (3) the need for information to resolve a present emergency, and (4)

the formality of the interrogation.” Ohlson, 162 Wn.2d at 12; accord State v. Koslowski, 166

Wn.2d 409, 418-19, 209 P.3d 479 (2009); State v. Reed, 168 Wn. App. 553, 563-64, 278 P.3d 203

(2012). We now turn to the merits of Houston-Sconiers’s and Roberts’s argument.

       Wright did not testify at trial and Houston-Sconiers and Roberts had no prior opportunity

to cross-examine him regarding his statement to Officer Halfhill.            Therefore, whether the




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confrontation clause bars admission of Wright’s statement turns exclusively on whether Wright’s

statement was testimonial.

       Houston-Sconiers asserts that the statement Wright made to Officer Halfhill was

testimonial because the robbery was over and Wright was in no immediate danger. Houston-

Sconiers argues that at that point, Officer Halfhill’s interaction with Wright was for the purpose of

learning about the crime that had occurred and obtaining information to apprehend the suspects

rather than to resolve an ongoing emergency. We disagree.

       Here, the four relevant factors weigh in favor of Wright’s statement being nontestimonial.

First, Wright’s statement related to a robbery that had occurred only minutes earlier and the

suspects were likely still in the process of fleeing the scene. Officer Halfhill responded to Wright’s

location within one minute of receiving the call to respond to a robbery. When Officer Halfhill

approached Wright’s location, Wright was jumping up and down and waving his arms, pointing

and saying, “[T]hey’re over there. They ran over there.” 12 RP at 1069. Officer Halfhill

immediately called for police units to set up containment and requested a K-9 unit to respond.

Within two minutes, Officer Halfhill reengaged with Wright and asked him to describe the

incident. Although Wright’s statement described the incident as a past event, Officer Halfhill

reasonably believed the suspects were still nearby and still in the process of fleeing the scene.

       Second, the armed robbery suspects posed a great threat of harm to the public at large and

the investigating officers. At the time Wright made the statement, the armed robbery suspects had

fled on foot and posed an ongoing threat to the public. The suspects engaged in a crime spree

involving a number of armed robberies on Halloween night when there are an exceptional number

of vulnerable juvenile victims wandering through residential neighborhoods.




                                                 20
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       Third, Wright’s statement provided vital information needed to resolve a present

emergency. Because of Officer Halfhill’s quick response time and Wright’s frantic pointing,

Officer Halfhill reasonably assumed that the suspects were still nearby. Wright’s statement

included the number of suspects, the clothing and masks they wore, the direction in which they

fled, and the fact that they were armed. Law enforcement needed this information to help

investigate and end a dangerous crime spree. The responding officers needed the information to

track the at-large armed suspects, to know with whom they were dealing, and to minimize threats

to the public and to themselves. See Ohlson, 162 Wn.2d at 14.

       Fourth, Wright’s statement was made at the scene of the crime on or near a public street.

This informal setting for an interrogation indicates the presence of an ongoing emergency.

Disorganized questioning in an exposed, public area that is neither tranquil nor safe tends to

indicate an emergent situation. Reed, 168 Wn. App. at 564.

       Houston-Sconiers argues that our Supreme Court’s decision in Koslowski, 166 Wn.2d 409,

compels us to decide in his favor. In Koslowski, the police responded to a 911 call from a victim

of an armed home invasion. 166 Wn.2d at 414. The officer arrived at the victim’s home within

two minutes of the call to respond and obtained the victim’s statement. Koslowski, 166 Wn.2d at

414. The State introduced the victim’s statement about the incident at trial in lieu of live testimony

because she died before trial. Koslowski, 166 Wn.2d at 412-13. The court held that the victim’s

statement was testimonial for purposes of the confrontation clause. Koslowski, 166 Wn.2d at 430.

       But the facts of Koslowski are readily distinguishable. No ongoing emergency existed in

Koslowski. 166 Wn.2d at 422. The suspects fled before police arrived, and no evidence indicated

they remained in the area or might return to the scene. Koslowski, 166 Wn.2d at 422, 426, 432.

There were also no facts suggesting that the home invasion was part of an active crime spree.



                                                 21
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Koslowski, 166 Wn.2d at 432. On the other hand, here, the officer responding to Wright’s 911 call

was seeking information to resolve an ongoing emergency. The police had received reports of

numerous similar crimes within the same area, during a short period of time. The suspects had

fled moments before on foot. Officer Halfhill’s investigation included gathering information from

Wright to aid officers in setting up containment and to assist the K-9 unit in tracking the suspects.

Although the timing of the statement in this case was roughly equivalent to Koslowski, here, where

the suspects fled on foot and would have been in close proximity to the crime scene, the response

time is more significant. The reports of multiple robberies and armed suspects fleeing on foot

created an ongoing emergency and a threat to public safety that was not present in Koslowski.

Finally, Wright’s statement, given in a public place, was less formal than the Koslowski victim’s

statement taken in the privacy of her home.

       The application of the four relevant factors to Wright’s statement leads us to conclude that

the primary purpose of Wright’s statement, including identifying information about the suspects,

was to meet an ongoing public emergency regarding a violent crime spree on the streets of a

residential neighborhood on Halloween night. The trial court did not err by concluding that

Wright’s statement was nontestimonial.        The trial court did not violate Houston-Sconiers’s

confrontation clause rights by admitting Wright’s statement despite Wright’s absence at trial.

Further, Roberts has failed to demonstrate that his counsel’s failure to raise the confrontation

clause issue prejudiced him.




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II.       SUFFICIENCY OF THE EVIDENCE

          Houston-Sconiers and Roberts argue that insufficient evidence exists to support their

convictions for assault in the second degree and for the firearm sentencing enhancements. We

disagree.

          A.     Standard of Review

          “The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A

claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably

can be drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence

are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Because

credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo,

115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Andy, 182

Wn.2d 294, 303, 340 P.3d 840 (2014).

          B.     Assault in the Second Degree

          Houston-Sconiers and Roberts argue that the State failed to prove that they assaulted Guice.

Specifically, they claim that the State did not prove that Guice felt a reasonable apprehension of

imminent bodily injury. We disagree.

          The State charged Houston-Sconiers and Roberts with assault in the second degree.14

Consistent with the statute, the trial court instructed the jury that: “A person commits the crime of



14
      RCW 9A.36.021(1)(c)



                                                  23
45374-6-II / 45414-9-II / 47085-3-II


assault in the second degree when he or she assaults another with a firearm.” Clerk’s Papers (CP)

(Houston-Sconiers (HS)) at 182. Additionally, the jury was instructed that,

        An assault is an act done with the intent to create in another apprehension and fear
        of bodily injury, and which in fact creates in another a reasonable apprehension and
        imminent fear of bodily injury even though the actor did not actually intend to
        inflict bodily injury.[15]

CP (HS) at 183.

        Viewing the evidence in the light most favorable to the State, sufficient evidence exists for

a jury to conclude that Guice felt a reasonable apprehension of imminent bodily injury.

“Apprehension and fear experienced by a person at whom a gun is pointed may be inferred, unless

he knows it to be unloaded.” State v. Stewart, 73 Wn.2d 701, 705, 440 P.2d 815 (1968). Guice

testified that at approximately 9:00 P.M. on Halloween night, three men approached her and her

friends. One of the men said “this is a stickup,” pointed a gun at Guice and her friends, and

demanded that they hand over their bags and cellular phones. 11 RP at 820. One of the men wore

a red mask. Guice hid her backpack, backed away, and immediately went to a nearby house “[t]o

get some help.” 11 RP at 826. Guice testified that the incident was “unbelievable.” 11 RP at 826.

The evidence supports the jury’s verdict that Guice was in apprehension and fear of bodily injury

during the incident, and Houston-Sconiers’s and Roberts’s claims that insufficient evidence exists

for their assault convictions fail.




15
  The term “assault” is not defined in the criminal code, so Washington courts turn to the common
law definition. State v. Aumick, 73 Wn. App. 379, 382, 869 P.2d 421 (1994), aff'd, 126 Wn.2d
422 (1995).



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       C.      Firearm Enhancements

               1.      Firearm Enhancement for Conspiracy

       Houston-Sconiers and Roberts argue that insufficient evidence supports the jury’s verdicts

that they were armed with a firearm at the time they conspired to commit robbery (count X)

because there were no facts from which a reasonable jury could infer a connection between the

firearm and the crime of conspiracy. We disagree.

       Houston-Sconiers and Roberts were each charged with conspiracy to commit first degree

robbery while armed with a firearm. Washington's conspiracy statute states:

       A person is guilty of criminal conspiracy when, with intent that conduct constituting
       a crime be performed, he or she agrees with one or more persons to engage in or
       cause the performance of such conduct, and any one of them takes a substantial step
       in pursuance of such agreement.

RCW 9A.28.040(1). To apply the firearm enhancement, the State had the burden of proving that

the defendant or an accomplice was armed with a firearm at the time of commission of the

conspiracy to commit robbery in the first degree. State v. Barnes, 153 Wn.2d 378, 387, 103 P.3d

1219 (2005).

       A defendant is armed “‘if a weapon is easily accessible and readily available for use, either

for offensive or defensive purposes.’” State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116

(2007) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). There must also

be a nexus between the defendant, the crime, and the weapon. Eckenrode, 159 Wn.2d at 493.

       Houston-Sconiers and Roberts do not dispute that sufficient evidence existed to convict

them of conspiracy. Rather, they challenge only whether sufficient evidence supported a nexus

between the firearm and the crime of conspiracy. They argue that even if a firearm was “available

for use” for the eventual agreed upon crime, it cannot logically be “available for use” in furtherance

of the actual agreement. Br. of Appellant (HS) at 24.


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45374-6-II / 45414-9-II / 47085-3-II


       Here, Houston-Sconiers and Roberts worked in concert to commit multiple similar

robberies, on Halloween night, using a firearm. Andrew and Steven Donnelly testified that

Houston-Sconiers and Roberts approached them on the street, announced that a robbery was

occurring, pointed the gun at one or more of the victims, and demanded their belongings.

Similarly, Houston-Sconiers and Roberts also approached Peterson-Mims, Greene, Bradley,

Guice, and Jones, announced that it was a robbery, pointed a gun at the group, and demanded their

possessions. Finally, Houston-Sconiers and Roberts robbed Wright by approaching him on the

street, brandishing a gun, and demanding his cellular phone.

       We conclude that sufficient evidence exists for a reasonable jury to infer that the firearm

was connected to the conspiracy because the agreement to commit the robberies involved the use

of a firearm. The State presented sufficient evidence of the nexus between the firearm and the

conspiracy to support the jury’s verdict that Houston-Sconiers and Roberts were “armed” with a

firearm during the commission of the conspiracy charged in count X.

               2.     All Firearm Enhancements

       Houston-Sconiers and Roberts also argue that insufficient evidence exists to support their

firearm sentence enhancements because the State did not prove that the firearm was capable of

firing a projectile at the time of the crime, as is required by statute. The State argues that such

proof is not required. We agree with the State.

       The trial court instructed the jury that “[a] ‘firearm’ is a weapon or device from which a

projectile may be fired by an explosive such as gunpowder.” CP (HS) at 195; accord RCW

9.41.010(9). We have repeatedly held that this definition does not limit firearms to only those

guns capable of being fired at the time of the crime. State v. Wade, 133 Wn. App. 855, 873, 138




                                                  26
45374-6-II / 45414-9-II / 47085-3-II


P.3d 168 (2006); State v. Berrier, 110 Wn. App. 639, 645, 41 P.3d 1198 (2002); State v. Faust, 93

Wn. App. 373, 380-81, 967 P.2d 1284 (1998).

        Houston-Sconiers and Roberts argue that this line of cases were wrongly decided because

when we found former RCW 9.41.010(1) ambiguous, we did not adopt the interpretation most

favorable to the criminal defendant as provided by the rule of lenity. State v. Padilla, 95 Wn. App.

531, 534, 978 P.2d 1113 (1999). However, we apply the rule of lenity when the legislature’s intent

is insufficiently clear to resolve the ambiguity, State v. Evans, 177 Wn.2d 186, 193, 298 P.3d 724

(2013), which is not the case with regard to RCW 9.41.010(1), and we decline to revisit this issue.

        The gun at issue was a .32 caliber revolver. Detective Vold testified that he tested its

operability and “[i]t fired as it[’]s designed to do without any problems.” 13 RP at 1280. However,

he did not test the firearm with the type of ammunition loaded in the gun at the time it was seized

because, although it was the same caliber, that ammunition was not “an exact match for what this

weapon is designed to shoot.” 13 RP at 1281. He further testified that he did not know if the gun

would have fired as it was loaded at the time the crimes were committed.

        We conclude that Detective Vold’s testimony that the gun was operable with the correct

ammunition provides sufficient evidence for the jury’s verdict. See Wade, 133 Wn. App. at 873;

Faust, 93 Wn. App. at 380-81. Accordingly, Houston-Sconiers’s and Roberts’s claims fail.

III.    PROSECUTORIAL MISCONDUCT

        Houston-Sconiers and Roberts allege that numerous instances of prosecutorial misconduct

denied them a fair trial. Although the prosecutor did err in a few instances, Houston-Sconiers and

Roberts received a fair trial.




                                                27
45374-6-II / 45414-9-II / 47085-3-II


       A.      Standards of Review

       A defendant who alleges prosecutorial misconduct first must establish that the prosecutor's

conduct was improper. State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012). Once a

defendant establishes that a prosecutor's statements were improper, we must determine whether

the defendant was prejudiced. Emery, 174 Wn.2d at 760. If the defendant objected at trial, he

must show that there is a substantial likelihood the misconduct affected the jury’s verdict. State v.

Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009).

       If the defendant did not object at trial, he is deemed to have waived any error unless the

prosecutor's misconduct was so flagrant and ill-intentioned that an instruction could not have cured

the resulting prejudice. Emery, 174 Wn.2d at 760-61. When reviewing a claim that prosecutorial

misconduct requires reversal, we review the statements in the context of the entire case. State v.

Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011).

       B.      Reference to Uncharged Crimes in Closing Argument

       Houston-Sconiers and Roberts argue that the prosecutor committed prejudicial misconduct

during closing argument by repeatedly implying that they committed other uncharged and

unproven crimes. Houston-Sconiers and Roberts point to four alleged instances of improper

argument.

       “We review a prosecutor’s comments during closing argument in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury instructions.”

State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). “A prosecutor has wide latitude

in closing argument to draw reasonable inferences from the evidence and to express such

inferences to the jury.” Boehning, 127 Wn. App. at 519. “However, a prosecutor may not make




                                                 28
45374-6-II / 45414-9-II / 47085-3-II


statements that are unsupported by the evidence and prejudice the defendant.” Boehning, 127 Wn.

App. at 519.

       In the first allegedly improper argument, the prosecutor said: “We know that Mr. Houston-

Sconiers, on the 14th of October, was in that same Cadillac displaying and holding the same

firearm that was used in the robbery.” 23 RP at 2234. Defense counsel objected, arguing that the

prosecutor was misstating the evidence. On appeal, Houston-Sconiers argues that “[al]though the

interior of the vehicle and the firearm resembled the Cadillac and silver gun later found under the

seat, there was no testimony that they were in fact the same.” Br. of Appellant (HS) at 28. No

such testimony is required. The prosecutor’s statement is proper argument because it constitutes

a reasonable inference from the evidence presented. See Boehning, 127 Wn. App. at 519. The

prosecutor did not commit misconduct.

       In the second allegedly improper argument, the prosecutor said, “[T]hese crimes occurred,

the ones that we know about, in this location and general area.” 23 RP at 2229. Defense counsel

did not object.

       A reasonable juror could infer from the prosecutor’s statement that Houston-Sconiers and

Roberts may have committed additional crimes. This argument is improper. It is also prejudicial

because it encourages the jury to convict Houston-Sconiers and Roberts based on facts not

admitted into evidence. However, because neither counsel objected, any misconduct is waived

unless it was so flagrant and ill-intentioned that no curative jury instruction could have cured the

resulting prejudice. Emery, 174 Wn.2d at 760-61. We conclude that this comment does not meet

this heightened standard.

       In Boehning, we concluded that the prosecutor’s statements were flagrant and ill-

intentioned where, in closing argument, the prosecutor told the jury that some specific charges had



                                                29
45374-6-II / 45414-9-II / 47085-3-II


been dismissed because the juvenile victim in a sexual assault case “was not able . . . to talk with

this group of strangers as well as she was able to do it one-on-one in the past,” she “didn’t want to

talk about this as much as she was willing to talk about it before.” 127 Wn. App. at 519. The

prosecutor then went on to tell the jury that “there’s an inference that she must have said something

a little bit more, because you heard about some other charges.” Boehning, 127 Wn. App. at 520.

Here the prosecutor’s passing reference to potential additional crimes is substantially different

from the prosecutor’s multiple references to specific dismissed crimes in Boehning.

       Furthermore, we evaluate potential misconduct during closing argument in the context of

the entire argument and the jury instructions. Boehning, 127 Wn. App. at 519. Prior to closing

arguments, the trial court instructed the jury that its decision must be made solely based on the

evidence presented; it must disregard any remark, statement, or argument not supported by the

evidence; and, that the lawyers’ statements are not evidence. The prosecutor also told the jury that

his closing is not evidence, it is argument. And finally, Houston-Sconiers’s counsel told the jury

that there was no evidence of other uncharged crimes and that no inferences should be drawn from

the prosecutor’s reference to other crimes:

               Well, the "crimes that we know about" is inflammatory language. They're
       the crimes that are charged. If the State knew about other crimes, they'd be charged.
       He says "the crimes that we know about" because he wants to scare you. He wants
       to frighten you into thinking that these guys, Mr. Houston-Sconiers and Mr.
       Roberts, were on some type of rampage and that they must have done other things
       that we just don' t know about. And that, boy, you better convict them because who
       knows what these little terrors did that night. Who knows?
               That's not how we convict people in this society; it's just not. We convict
       them based on evidence beyond a reasonable doubt. We don't convict them on
       innuendo. We don't scare people into convicting people. It's not the American
       way, and you're not going to fall for that.

23 RP at 2305-06.




                                                 30
45374-6-II / 45414-9-II / 47085-3-II


          We conclude that there was not a substantial likelihood that the prosecutor’s fleeting

remark affected the jury’s verdict to the extent that a curative instruction could not have cured the

resulting prejudice. See In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673

(2012).

          In the third allegedly improper argument, the prosecutor said, “[G]uess what, there’s two

backpacks in that car that can’t be identified . . . How did those get in there and why are they in

there?” 23 RP at 2343. Defense counsel objected stating, “Objection, Your Honor. These could

belong to the perpetrators. They could have been there a long time. Counsel is using them to

suggest other acts of misconduct that are completely improper.” 23 RP at 2343.

          The State contends that taken in context, the prosecutor was arguing that fingerprint

evidence would not have indicated whether the backpacks found in the car were stolen, and if so,

by whom. We are not persuaded by the State’s argument; however, the prosecutor did not directly

refer to uncharged crimes. The argument itself is ambiguous.

          Assuming, but without deciding that the statement is improper, in the context of the entire

argument and the jury instructions already discussed, Boehning, 127 Wn. App. at 519, we conclude

that Houston-Sconiers has not shown a substantial likelihood that the remark affected the jury

verdict. See Glasmann, 175 Wn.2d at 704.

          In the fourth allegedly improper argument, the prosecutor refers to a statement made by

Houston-Sconiers during a recorded jail phone call, which the jury heard. The prosecutor stated,

                  It's so incredibly unlucky that he chose to make phone calls to his buddies
          and say n[*****] be snitching. I'm not telling you to do something to that—and
          I'm not going to say it again—but what happens to that happens to him. Oh, no,
          that's not a threat. Who is he talking about? Money,[16] by name. Is it a surprise
          that Money takes the stand after that, don't remember, don't remember, don't
          remember.

16
     “Money” is Tolbert’s nickname. 18 RP at 1813.


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23 RP at 2350. Defense counsel objected.

       Houston-Sconiers argues that “[b]y using the substance of the recordings to imply that

Houston-Sconiers was attempting to influence Tolbert’s testimony, the prosecutor flagrantly and

intentionally violated the trial court’s ruling admitting the evidence for a limited purpose,” and

improperly “invited the jury to determine [guilt] based on improper” purposes. Br. of Appellant

(HS) at 29. We disagree.

       The prosecutor did not imply that the jury should convict Houston-Sconiers because he

was guilty of other uncharged crimes, e.g., witness tampering. The prosecutor merely drew a

permissible inference from the evidence about the credibility of a witness. We reject Houston-

Sconiers’s allegation that the prosecutor invited the jury to determine guilt based on improper

purposes.

       In addition, we reject Houston-Sconiers’s allegation that the prosecutor flagrantly and

intentionally violated the trial court’s ruling regarding the admissibility of the jail phone call

recordings. The trial court admitted portions of the jail phone call recordings without stating any

limitation on their use. Defense counsel asked the trial court to make a record as to the basis for

admissibility for certain portions of recordings. The trial court stated:

              I believe they’re relevant, as argued by the State, in regards to state of mind.
              And also I believe it ties in with his other statements that I have allowed in
              in which he discusses posting names on Facebook, giving him his state of
              mind that he hates snitches, which I believe is relevant. He may not be
              actively soliciting, but I think there’s an inference that is relevant as to how
              he feels about these individuals. And I believe it ties in with other
              conversations that I have admitted in on part of that tape.

17 RP at 1654. It is not clear that the trial court admitted the jail phone calls for a limited purpose

or that the court restricted the State from drawing inferences regarding the effect that Houston-

Sconiers’s expressed dislike for snitches would have on a witness’s decision to testify against him.


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       Furthermore, defense counsel’s objection to the prosecutor’s argument was a narrative that,

“The State has not levied any charges against my client that relate to that at all, and that is an

improper allegation of misconduct.” 23 RP at 2351. Defense counsel did not object regarding a

violation of a trial court ruling. Because defense counsel did not make an objection, the alleged

misconduct is waived unless the misconduct is so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice. See Emery, 174 Wn.2d at 760-61. We conclude that

Houston-Sconiers has not met this standard and the alleged misconduct is waived.

       C.      Disparaging Defense Counsel

       Houston-Sconiers and Roberts identify numerous statements in which they allege the

prosecutor disparaged defense counsel in closing argument.

       It is misconduct for the prosecutor to impugn defense counsel’s role or integrity. State v.

Lindsay, 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014). For example, a prosecutor commits

misconduct by referring to the defense's case as “bogus” or involving “sleight of hand,” which

implies “wrongful deception or even dishonesty in the context of a court proceeding.” Thorgerson,

172 Wn.2d at 451-52. Similarly, a prosecutor commits misconduct by referring to the defense's

closing argument as a “crock.” Lindsay, 180 Wn.2d at 433-34. However, “the prosecutor, as an

advocate, is entitled to make a fair response to the arguments of defense counsel.” State v. Russell,

125 Wn.2d 24, 87, 882 P.2d 747 (1994).

       Houston-Sconiers and Roberts allege that following two arguments, the prosecutor

disparaged defense counsel in closing argument.

       Defense counsel just argued against herself in regard to the standard of proof in this
       abiding belief. She said that she hears prosecutors say frequently that this abiding
       belief issue is you have to believe it now, two weeks from now, five years now.
       And she suggested it's a difficult concept. One, it is not a difficult concept, and it
       is what it says it is. She did not completely tell you what that sentence says and
       what it applies to.


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       ....
       Now, I want to directly address some of the things that defense counsel for Mr.
       Houston-Sconiers said that I absolutely 100 percent disagree with her statement as
       to what witnesses said and what the evidence was in this case. And some of the
       issues that were woven in there as if they're premises, they're true things, the
       foundation of what she's saying is true.

23 RP at 2335-36, 2338. Houston-Sconiers and Roberts did not object to either argument.

       In the first statement, the prosecutor alleges an inconsistency in defense counsel’s

explanation of a jury instruction, and in the second, he expresses disagreement with defense

counsel’s recitation of the evidence presented at trial. Both are fair responses to defense counsel’s

closing argument. See Russell, 125 Wn.2d at 87.

       The third allegedly disparaging argument is as follows:

       We don't know, based on the forensics analysis, whether this hockey mask, so to
       speak, had nicks on it from her client's glasses, okay. What's the premise involved
       in that? What's the misrepresentation based on the evidence about that? And that
       is that the defendant wears glasses at all. He's in the video with the gun, no glasses.
       Nobody mentioned that he wears glasses, the officers, et cetera, but he has glasses
       on in the courtroom.

23 RP at 2345. Defense counsel objected, but the basis for the objection was not that the argument

was disparaging. See 23 RP at 2345 (“Objection, your Honor. Counsel’s assuming that it’s he in

the video, and no one asked any officer about his glasses. It’s improper for the prosecutor to even

suggest to the jury that my client’s glasses are not prescription and not something that he needs,

since they are.”).

       Here, the prosecutor was responding directly to defense counsel’s argument that the hockey

mask lacked forensic evidence, indicating that a person with glasses had been wearing it. The

prosecutor was attempting to undermine defense counsel’s argument by pointing out the faulty

underlying premise—that Houston-Sconiers wore glasses. The prosecutor’s use of the word

“misrepresentation” may have been directed at the discrepancy between Houston-Sconiers



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wearing glasses in the courtroom when there was no evidence presented that Houston-Sconiers

wore glasses on Halloween or on other occasions. But even if the jury believed the prosecutor

accused defense counsel of misrepresenting a fact, this statement is of minor significance in the

context of the entire trial. It is also significant that trial counsel did not object to the statement on

the basis now argued. It cannot be said that the argument was flagrant and ill-intentioned or that

an instruction could not have cured any resulting prejudice. See Glasmann, 175 Wn.2d at 704.

        Finally, Houston-Sconiers and Roberts argue that the following statements disparaged the

role of defense counsel by implying that contrary to defense counsel’s role, the prosecutor’s role

is to elicit the truth and by urging the jury to disregard the defense because defense counsel’s

motives were suspect and impure:

                 When defense counsel for Mr. Roberts said among the demeanors that
        you're to consider other than the witnesses are the people in the courtroom and the
        participants, that's not accurate either. That's to involve sympathy. That's to
        suggest that when I' m being very aggressive with Ms. Bush, that you're to judge
        me. . . . . I treated [Bush] with respect. You may disagree. But I was strong for a
        reason because when individuals get on the stand, my job is to challenge the
        evidence so that you can ultimately decide whether somebody's credible or not.
                 ....
                 So in order to get to that point, my job and the process as an advocate as a
        person, as I said, to challenge the evidence is not to take what Ms. Bush says and
        just, okay, Ms. Bush, open-ended question, what' s your answer to this? Thank you
        very much. It's to challenge it. And that's the only way you discover, for instance,
        that she's been talked to during her testimony by somebody.

23 RP 2346, 2348. Defense counsel did not object to any of these statements.

        The prosecutor’s arguments simply do not disparage defense counsel. And, to the extent

that the arguments referred to defense counsel at all, the prosecutor merely responded to defense

counsel’s apparent suggestion that the jury should consider the prosecutor’s demeanor as evidence.

The prosecutor is entitled to make a fair response to the arguments of defense counsel. Russell,

125 Wn.2d at 87. We conclude that the prosecutor committed no misconduct.



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       D.      Prosecutor’s Personal Opinion

       Finally, Houston-Sconiers and Roberts argue that the prosecutor expressed his personal

opinion that Houston-Sconiers and Roberts committed the robberies, that Houston-Sconiers was

guilty, and about a witness’s credibility. We disagree.

       It is improper for a prosecutor to express an independent, personal opinion as to the

credibility of a witnesses or the guilt or innocence of a defendant. State v. McKenzie, 157 Wn.2d

44, 53, 134 P.2d 221 (2006); State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).

       To determine whether the prosecutor is expressing a personal opinion of the
       defendant's guilt, independent of the evidence, a reviewing court views the
       challenged comments in context: “It is not uncommon for statements to be made in
       final arguments which, standing alone, sound like an expression of personal
       opinion. However, when judged in the light of the total argument, the issues in the
       case, the evidence discussed during the argument, and the court's instructions, it is
       usually apparent that counsel is trying to convince the jury of certain ultimate facts
       and conclusions to be drawn from the evidence. Prejudicial error does not occur
       until such time as it is clear and unmistakable that counsel is not arguing an
       inference from the evidence, but is expressing a personal opinion.”

McKenzie, 157 Wn.2d at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d

59 (1983)) (emphasis added).

       First, Houston-Sconiers and Roberts allege that the prosecutor expressed his personal

opinion about Tolbert’s credibility by reminding Tolbert during his testimony that he could be

charged with perjury. We disagree. The prosecutor asked Tolbert, “But you can be charged with

perjury if you don’t tell the truth?” 18 RP at 1822. Contrary to Houston-Sconiers and Roberts’s

argument, the prosecutor asked this question, not as a way to convey his personal opinion of

Tolbert’s credibility but during a series of questions about Tolbert’s charges being dismissed, the

court granting him transactional immunity, and whether he understood the effect of that immunity

regarding potential future charges. The prosecutor’s inquiry as to whether Tolbert understood that

he could still face perjury charges for untruthful testimony was not an expression of the


                                                36
45374-6-II / 45414-9-II / 47085-3-II


prosecutor’s personal opinion about the witness, but rather an appropriate follow-up question

related to the dismissal of Tolbert’s charges and the subsequent grant of immunity to him.

       Next, Houston-Sconiers and Roberts allege that the prosecutor expressed his personal

opinion about their guilt by the way he questioned Tolbert about Tolbert’s involvement in any

robberies. The prosecutor asked Tolbert a series of questions: whether he committed a robbery on

Halloween, whether he was present when a robbery was committed, and whether he was sure of

that. The prosecutor briefly stood behind Houston-Sconiers and Roberts and pointed to them when

he was asking Tolbert about his involvement in any robberies. The questions the prosecutor posed

to Tolbert were not improper and they did not express a personal opinion about whether Houston-

Sconiers and Roberts committed the charged robberies. It was important for the prosecutor to ask

Tolbert specific clarifying questions because Tolbert had been an uncooperative and evasive

witness. Tolbert changed his answer to the above-mentioned questions from “no” to “I don’t

remember.” 18 RP at 1859. He explained that he had to fix his answer to avoid lying under oath.

And, Tolbert had previously testified that he did not remember the events of Halloween and that

the only reason he knew that he did not rob anyone was because he did not have any charges

pending. The prosecutor’s questions did not express a personal opinion about whether Houston-

Sconiers and Roberts committed the robberies.

       Finally, Houston-Sconiers and Roberts argue that the prosecutor expressed a personal

belief in Houston-Sconiers’s guilt based on the following statement in closing argument: “We

know from that evidence there is no issue that Mr. Houston-Sconiers is guilty of every crime

charged, period.” 23 RP at 2235. Although the prosecutor used the word “we,” which would

include himself, it is clear that the prosecutor was making an argument about Houston-Sconiers’s




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guilt based on the evidence, rather than on an independent personal opinion. See McKenzie, 157

Wn.2d at 53-54. Therefore, the statement is not improper.

VI.     DISCRETIONARY LFOS

        Houston-Sconiers and Roberts argue that the trial court acted outside its statutory authority

by imposing discretionary LFOs without first considering their abilities to pay such obligations.

        As a threshold matter, the State argues that Houston-Sconiers and Roberts failed to object

to the LFOs below and therefore cannot raise the issue for the first time on appeal. At sentencing,

Houston-Sconiers and Roberts represented to the trial court that they had no ability to pay LFOs

and requested that the trial court not impose any discretionary LFOs. Therefore, Houston-Sconiers

and Roberts clearly preserved this issue.

        The State also argues that Houston-Sconiers’s and Roberts’s challenge to discretionary

LFOs is not ripe for review because the State has not attempted to enforce the orders. Our Supreme

Court recently rejected this argument. State v. Blazina, 182 Wn.2d 827, 832 n.1, 344 P.3d 680

(2015). Because the issue is both preserved and ripe, we reach the merits of Houston-Sconiers’s

and Roberts’s LFO claims.

        The sentencing court must consider Houston-Sconiers’s and Roberts’s present or likely

future ability to pay.

        The court shall not order a defendant to pay costs unless the defendant is or will be
        able to pay them. In determining the amount and method of payment of costs, the
        court shall take account of the financial resources of the defendant and the nature
        of the burden that payment of costs will impose.

RCW 10.01.160(3).

        In Blazina, our Supreme Court concluded that the record must reflect that the sentencing

court made an individualized inquiry into the defendant’s current and future ability to pay before

the court imposes discretionary LFOs. 182 Wn.2d at 838. When determining a defendant’s ability


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45374-6-II / 45414-9-II / 47085-3-II


to pay, the sentencing court must consider important facts such as incarceration and a defendant’s

other debts, including restitution. Blazina, 182 Wn.2d at 838. If a sentencing court imposes

discretionary LFOs without inquiring into a defendant’s ability to pay, the matter should be

remanded to the trial court for a new sentence hearing. Blazina, 182 Wn.2d at 839.

       Here, Houston-Sconiers requested that the trial court not impose discretionary LFOs

because he had no ability to pay them. Houston-Sconiers represented that he had never worked

and was “as poor as a church mouse.” 25 RP at 2396. Based on these representations, the trial

court waived $200 in discretionary court costs and reduced the attorney fee recoupment from the

standard $1,500 to $500. The judge explained that he was not entirely waiving the attorney fee

recoupment because he thought that there should be a minimum amount that Houston-Sconiers be

required “to [pay] back to the taxpayers for [his] defense.” 25 RP at 2403.

       On appeal, Houston-Sconiers argues that the trial court did not concern itself with his

ability to pay. We disagree. The record shows that the trial court considered Houston-Sconiers’s

ability to pay and significantly reduced the discretionary LFOs the State recommended. In light

of this record, we conclude that the trial court did conduct an individualized assessment of

Houston-Sconiers’s ability to pay.

       Roberts also requested that the trial court not impose discretionary LFOs. Roberts

represented to the trial court that he was an unemployed, indigent minor, who had no ability to

pay. Roberts’s sentencing immediately followed Houston-Sconiers’s sentencing and occurred in

the same proceeding. With regard to LFOs, the trial court stated, “I will follow the same . . . court

costs, fines, [and attorney fee] recoupment . . . as recommended earlier.” 25 RP at 2418. In fact,

the trial court imposed the same discretionary costs on Roberts as it did on Houston-Sconiers.




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        The trial court’s imposition of the same amount of LFOs on Roberts as on Houston-

Sconiers seems to weigh against the trial court having made an individualized inquiry. On the

other hand, by imposing the same amount of discretionary LFOs on Roberts as it did on Houston-

Sconiers, the trial court considered Roberts’s own inability to pay. Both Roberts and Houston-

Sconiers had similar arguments relating to their ability to pay. Therefore, it does not necessarily

follow that because the trial court imposed the same amount of discretionary LFOs on both

Houston-Sconiers and Roberts, it did not make an individualized inquiry into each of their ability

to pay. Rather, the trial court’s decision to reduce Roberts’s discretionary LFOs from the standard

amount demonstrates that the trial court also considered Roberts’s individualized ability to pay.

        We conclude that trial court conducted an individualized assessment with regard to both

Houston-Sconiers’s and Roberts’s ability to pay discretionary LFOs.                Therefore, Houston-

Sconiers’s and Roberts’s LFO claims fail.

IV.     HOUSTON-SCONIERS’S PRP

        Houston-Sconiers filed a separate PRP that we consolidated with his direct appeal. In his

PRP, Houston-Sconiers contends that (1) the trial court abused its discretion when it refused to

grant an evidentiary hearing on his motion to suppress evidence, (2) the trial court violated his

right to be present at all critical stages of the trial, (3) the trial court erred by refusing to give his

proposed “missing witness” instruction to the jury, and (4) numerous instances of prosecutorial

misconduct deprived him of a fair trial. We deny Houston-Sconiers’s petition.

        A.      PRP Standard of Review

        We consider the arguments raised in a PRP under one of two different standards, depending

on whether the argument is based on constitutional or nonconstitutional grounds. In re Pers.

Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). A petitioner raising constitutional



                                                   40
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error must show that the error caused actual and substantial prejudice. Davis, 152 Wn.2d at 671-

72. In contrast, a petitioner raising nonconstitutional error must show a fundamental defect

resulting in a complete miscarriage of justice. In re Pers. Restraint of Elmore, 162 Wn.2d 236,

251, 172 P.3d 335 (2007).

       Additionally, Houston-Sconiers must support his claims of error with a statement of the

facts on which his claim of unlawful restraint is based and the evidence available to support his

factual allegations. RAP 16.7(a)(2); In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759

P.2d 436 (1988); see also In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506

(1990). Houston-Sconiers must present evidence showing his factual allegations are based on

more than mere speculation, conjecture, or inadmissible hearsay. In re Pers. Restraint of Rice,

118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Bald assertions and conclusory allegations are not

sufficient. Rice, 118 Wn.2d at 886.

       B.      Evidentiary Hearing

       Houston-Sconiers argues that the trial court erred by refusing to hold an evidentiary hearing

on his motion to suppress physical evidence found in the Cadillac where the parties disputed

whether Houston-Sconiers and Roberts had permission to be in the Cadillac. The State argues that

the trial court properly exercised its discretion to deny the evidentiary hearing because the only

disputed fact was irrelevant to the trial court’s analysis. We agree with the State.

       CrR 3.6(a) provides, “The court shall determine whether an evidentiary hearing is required

based upon the moving papers.” “The trial court has discretion whether to take oral testimony on

a motion to suppress.” State v. Kipp, 171 Wn. App. 14, 28, 286 P.3d 68 (2012), reversed on other

grounds, 179 Wn.2d 718, 317 P.3d 1029 (2014). A trial court abuses its discretion if its decision

is manifestly unreasonable or rests on untenable grounds. Kipp, 171 Wn. App. at 28.



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        Here, the police arrested Houston-Sconiers and Roberts in an inoperable Cadillac parked

in Worthey’s backyard. Worthey, who was responsible for watching the Cadillac for her son, did

not give Houston-Sconiers and Roberts permission to be on her property or in the Cadillac.

Worthey consented to a search of the Cadillac.

        Houston-Sconiers and Roberts requested an evidentiary hearing to demonstrate that they

had permission to be in the Cadillac. The defense made an offer of proof and told the trial court

that Worthey’s son, Robert Johnson, would testify he owned the Cadillac and had given permission

to Houston-Sconiers and Roberts to be in the car. The trial court denied the evidentiary hearing

because it concluded that Johnson’s testimony was not necessary to decide the suppression motion.

Ultimately, the trial court concluded that regardless of whether Houston-Sconiers and Roberts had

Johnson’s permission to sit in the Cadillac, they did not have a reasonable expectation of privacy

in the inoperable vehicle parked on Worthey’s property because they did not have her permission

to be on her property; and even if they had a reasonable expectation of privacy, Worthey had

legitimate authority to give consent to search the Cadillac left under her custody and control.

        Houston-Sconiers argues that the trial court erred by denying an evidentiary hearing on the

suppression motion, but he fails to show actual prejudice or a miscarriage of justice resulting from

the alleged error. He fails to provide argument and citation to authority showing that Johnson’s

testimony would have resulted in the trial court granting his suppression motion. Accordingly, his

claim fails.

        C.     Right to Be Present

        Houston-Sconiers next argues that we must reverse his convictions and remand for a new

trial because the trial court conducted an open court session without him being present.

Specifically, he contends that on July 8, while he was absent from court, the court conducted voir



                                                 42
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dire, selected jurors, and discussed whether his counsel could proceed in the face of a medical

emergency. The transcript shows that voir dire and jury selection occurred on the morning of July

8, 2013. Houston-Sconiers does not identify any evidence showing that he was not present during

that session.

       When the trial court reconvened in the afternoon, it determined that Houston-Sconiers’s

counsel required immediate medical attention for an injury sustained over the lunch hour. The

court excused counsel to seek medical attention and advised her to call and update the court about

her situation. Counsel called the court and reported that she required stitches and would need to

go home. The court then decided that it would not hold session that afternoon because Houston-

Sconiers’s counsel could not be present. The court adjourned for the day and excused the jury.

Houston-Sconiers was not present during any of the proceedings or discussions that occurred on

the afternoon of July 8.

       On July 9, the trial court updated Houston-Sconiers and Roberts, on the record in open

court, about the previous afternoon’s discussions that were held outside their presence. Houston-

Sconiers’s counsel first confirmed that the trial court provided an accurate rendition of the previous

afternoon’s events and then objected to the fact that her client was not present. In response, the

trial court explained that it would not allow Houston-Sconiers to be present in the courtroom

without his counsel, no substantive issues were discussed, and only procedural and scheduling

issues relating to counsel’s medical condition occurred.

       The Washington Constitution grants criminal defendants “the right to appear and defend

in person,” WASH. CONST. art. I, § 22, meaning that an accused person has a constitutional right to

be present “when evidence is being presented” and “‘whenever his presence has a relation,

reasonably substantial, to the fulness of his opportunity to defend against the charge.’” In re Pers.



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Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994) (quoting United States v. Gagnon,

470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)). A defendant, then, has the right to

be present at every critical stage of a criminal proceeding. State v. Bremer, 98 Wn. App. 832, 834,

991 P.2d 118 (2000). But a criminal defendant “does not have a right to be present during . . .

conferences between the court and counsel on legal matters, at least where those matters do not

require a resolution of disputed facts.” Lord, 123 Wn.2d at 306 (citations omitted); see also State

v. Irby, 170 Wn.2d 874, 881, 246 P.3d 796 (2011) (stating there is no right to be present when a

defendant’s “‘presence would be useless, or the benefit but a shadow’”) (quoting Malloy v. Hogan,

378 U.S. 1, 106-07, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).

       The trial court’s discussion with counsel on strictly procedural and scheduling matters

related to defense counsel’s unavailability to proceed was not a critical stage of the proceeding.

Therefore, Houston-Sconiers’s absence during the afternoon of July 8 did not violate his

constitutional right to be present.

       D.      Missing Witness Instruction

       Houston-Sconiers asserts that the trial court erred by allowing hearsay testimony from

Wright without instructing the jury on the missing witness instruction.17 He alleges that failing to

instruct the jury on the missing witness doctrine allowed the State to shift its burden of proof to

the defense. Because Houston-Sconiers was not entitled to the instruction, his claim fails.

       We review a trial court's denial of a defendant's proposed jury instruction for an abuse of

discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005). A trial court abuses its



17
  We interpret Houston-Sconiers’s argument as a challenge to the court’s denial of his proposed
missing witness instruction. To the extent Houston-Sconiers is repeating his direct appeal
assignment of error—challenging the trial court’s decision to allow Wright’s hearsay testimony
over Houston-Sconiers’s confrontation clause objections—that issue is addressed above.


                                                44
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discretion if it exercises its discretion based on untenable grounds or for untenable reasons. State

v. Smith, 124 Wn. App. 417, 428, 102 P.3d 158 (2004).

       A missing witness instruction informs the jury that it may infer a person's testimony would

have been unfavorable to a party. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 5.20, at 177 (3d ed. 2008). Generally, a four part test is employed to

determine if a missing witness instruction should be given. State v. Montgomery, 163 Wn.2d 577,

598-99, 183 P.3d 267 (2008). One of the prongs is that the missing witness is particularly under

the control of the party, in this case the State. Montgomery, 163 Wn.2d at 598-99. For purposes

of this case, we need only address this part of the test.

       Houston-Sconiers joined his codefendant’s request for a missing witness instruction

relating to Wright. The State argued that the doctrine did not apply because Wright was not

peculiarly available to the State. The State represented that it could not locate Wright for trial

despite its attempts to do so. Its efforts included requesting and obtaining a material witness

warrant for him. Thus, because the State showed that Wright was not particularly under their

control, the trial court did not abuse its discretion in refusing to give a missing witness instruction.

Accordingly, Houston-Sconiers’s claim fails.

       E.       Prosecutorial Misconduct

       Houston-Sconiers makes seven additional allegations of prosecutorial misconduct. Some

of the allegations are recast from his direct appeal.

                1.      Family Bias

       Houston-Sconiers contends that the prosecutor’s personal bias led to this prosecution.

Houston-Sconiers argues that the State believed he came from a bad family and would continue to

commit worse crimes as he got older. In order to succeed in his PRP, Houston-Sconiers must show



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that the alleged prosecutorial misconduct caused actual and substantial prejudice. See Elmore, 162

Wn.2d at 251. He fails in this endeavor.18

       Houston-Sconiers relies on an extra-record declaration from his trial counsel, Barbara

Corey. Corey declares that the prosecutor refused to negotiate because of her client’s family

background. She also declares that the prosecutor told her that Houston-Sconiers came from a

“very bad family,” that he deserved no leniency, and that he would continue to commit worse

crimes as he got older. PRP Appendix C. Finally, Corey contends that the prosecutor said that he

wanted to lock up Houston-Sconiers for as long as he could.

       The hearsay statements attributed to the prosecutor do not establish that Houston-

Sconiers’s prosecution was based on personal bias. The record reveals that the prosecutor took

many actions inconsistent with the biased prosecution alleged by Houston-Sconiers. For example,

the prosecutor did negotiate with Houston-Sconiers; he offered Houston-Sconiers a plea agreement

that would have resulted in 17.5 years’ confinement, far less than the 31 years’ confinement the

court ultimately imposed. Furthermore, at the end of his case-in-chief, the prosecutor stipulated

that the State failed to prove Houston-Sconiers committed robbery in the first degree as charged

in count VIII. Finally, at sentencing, the prosecutor recommended an exceptional sentence below

the standard range, which included only the statutorily-mandated confinement attributable to the

firearm enhancements. We conclude that Houston-Sconiers fails to show “personal bias” that

resulted in any prejudice. And, he fails to show any personal bias at all.




18
   Houston-Sconiers cites to In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 842 P.2d 950
(1992), for support, but that case does not advance his claim because it did not concern an
allegation of prosecutorial misconduct. Rather, in Vandervlugt, our Supreme Court reiterated that
a trial court could not use a finding of future dangerousness to impose an exceptional sentence for
a nonsexual offense. 120 Wn.2d at 434-35.



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                  2.     Alluding to Defense Counsel as Dishonest

           Next Houston-Sconiers contends that the prosecutor committed misconduct by alluding to

defense counsel’s dishonesty.        But the statement to which Houston-Sconiers refers, the

prosecutor’s allegation that defense counsel made a misrepresentation to the trial court, was made

to the court outside the jury’s presence. Houston-Sconiers fails to show how the prosecutor’s

remark outside the jury’s presence constituted prejudice. Accordingly, his claim fails.

                  3.     Burden-Shifting

           Next Houston-Sconiers contends that the prosecutor committed misconduct by shifting the

burden of proof by pointing out that certain witnesses did not testify in court. He directs us to a

portion of closing argument in which the prosecutor discusses the credibility of Roberts’s “alibi”

witnesses. See RP at 2239-40. The prosecutor pointed out that although Roberts’s girlfriend

testified that Roberts’s mother was also present at the house at a critical time, his mother did not

testify.

           “A criminal defendant has no burden to present evidence, and it is error for the State to

suggest otherwise.” Montgomery, 163 Wn.2d at 597-98. Here, the prosecutor implied that

Roberts’s mother did not testify because her testimony would not have been consistent with Bush’s

alibi testimony. Assuming without deciding that the prosecutor’s statement was improper because

it implies that Roberts had a burden to prove his innocence, Houston-Sconiers has not shown that

he was prejudiced by the prosecutor’s argument. The prosecutor’s argument was about Roberts’s

failure to produce his mother’s testimony to back up his alibi. It had nothing to do with Houston-

Sconiers.




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                 4.    Misstating the Evidence

       Houston-Sconiers’s next allegation of misconduct is that the prosecutor misstated the

evidence and referenced things that witnesses did not say. Houston-Sconiers directs us to five

pages of the prosecutor’s closing argument without further discussion. He does not identify which

arguments he finds objectionable and does not compare the prosecutor’s alleged misstatements

with the witnesses’ actual testimony.      Such bare allegations cannot sustain his burden to

demonstrate actual prejudice relating to this claim.

                 5.    Appealing to Racial Bias

       Houston-Sconiers contends that the prosecutor appealed to racial bias in his closing

argument by using racially derogatory language and suggesting to the jury that a witness could not

remember due to a “snitch code.” PRP at 18. The allegedly improper argument is as follow:

               It’s so incredibly unlucky that he chose to make phone calls to his buddies
       and say n[*****] be snitching. I' m not telling you to do something to that—and
       I'm not going to say it again— but what happens to that happens to him. Oh, no,
       that's not a threat. Who is he talking about? Money, by name. Is it a surprise that
       Money takes the stand after that, don't remember, don't remember, don't remember.

23 RP at 2350.

       Houston-Sconiers relies on State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011). In

Monday, our Supreme Court reversed the defendant’s convictions because the prosecutor

improperly injected racial prejudice into the trial proceedings by repeatedly invoking an alleged

African American anti-snitch code to discount the credibility of witnesses, stating “black folk don't

testify against black folk.” 171 Wn.2d at 678. The prosecutor’s appeal to racism permeated the

trial. For example, the prosecutor began referring to the “police” as “po-leese” to draw the jury’s

attention to the fact that a witness was African American and to emphasize the prosecutor’s

contention that “black folk don’t testify against black folk.” Monday, 171 Wn.2d at 679. The



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Supreme Court in Monday announced that the constitutional harmless error standard applies “when

a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines

the defendant's credibility or the presumption of innocence.” 171 Wn.2d at 680.

       Here, the prosecutor did not use racial bias to undermine Houston-Sconiers’s presumption

of innocence or the credibility of witnesses. Although the prosecutor used racially derogatory

language in his closing, he did so by repeating Houston-Sconiers’s own statement from a recorded

jail conversation. The State’s argument went to show Houston-Sconiers’s state of mind, which

was at odds with the defense’s theory that this case involved a case of mistaken identity and that

the State’s witnesses were framing him. The prosecutor used the defendant’s own statement,

which included racially derogatory language, to draw permissible inferences about Houston-

Sconiers’s guilt. This use of language is fundamentally different from Monday, where the

prosecutor relied on racially derogatory language to undermine the credibility of witnesses based

on racial stereotypes. We conclude that the prosecutor’s argument here was not improper.

               6.      Improper Demonstration

       Houston-Sconiers argues that the prosecutor committed misconduct by using one of the

masks and the firearm with the lights dimmed to illustrate the scene of the crimes. At trial, defense

counsel objected to the demonstration, and argued that it lacked foundation, misrepresented the

facts, and did not help the jury. But in his PRP, Houston-Sconiers claims the prosecutor used the

demonstration in an attempt to inflame the jury to be biased against him. This bare allegation is

unsupported by the record.      The prosecutor explained, and the trial court agreed, that the

demonstration went to whether or not a witness could tell the color of the gun’s grips under the

circumstances discussed. The illustration and corresponding inquiry directly responded to defense

counsel’s cross-examination.



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       Houston-Sconiers relies on State v. Gregory, 158 Wn.2d 759, 866-67, 147 P.3d 1201

(2006). In Gregory, the Supreme Court held that a prosecutor engaged in misconduct during

closing argument in the penalty phase of a murder trial by discussing prison conditions, which

clearly violated the trial court’s order excluding any reference to conditions that exist in prison.

158 Wn.2d at 866-67. Houston-Sconiers does not explain how the prosecutor’s demonstration is

analogous to the situation in Gregory. Here, the trial court did not prohibit the prosecutor from

making the demonstration.

       Houston-Sconiers does not provide authority or persuasive reasoning demonstrating that

the prosecutor acted improperly by using the trial exhibits and dimmed lights to illustrate how the

lighting conditions and the mask’s obstruction may have affected a witness’s perception. It is not

clear how this demonstration inflamed the jury or created bias. Accordingly, we reject his claim.

               7.      “Advocating On Behalf of the Public”

       Finally, Houston-Sconiers asserts that the prosecutor committed misconduct by telling the

jury that he was advocating on behalf of the public. He also claims that the prosecutor cannot play

to the jurors’ emotions by stating that he is an “advocate for justice.” PRP at 21. Houston-Sconiers

points us to a single page of record to support his allegation. It appears that Houston-Sconiers is

referring to the following selection:

               So in order to get to that point, my job and the process as an advocate as a
       person, as I said, to challenge the evidence is not to take what Ms. Bush says and
       just, okay, Ms. Bush, open-ended question, what' s your answer to this? Thank you
       very much. It's to challenge it. And that's the only way you discover, for instance,
       that she's been talked to during her testimony by somebody who was in here.

23 RP at 2348. Contrary to Houston-Sconiers’s allegation, the prosecutor did not claim that he

was an advocate on behalf of the public or an advocate for justice. Therefore, Houston-Sconiers’s

claim is rejected.



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       We affirm Houston-Sconiers’s and Roberts’s convictions, and we deny Houston-

Sconiers’s PRP.




                                                   Melnick, J.

I concur:




       Johanson, J.




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        BJORGEN, J. (dissenting) — For crimes committed when they were 17 and 16 years old,

respectively, the State charged Zyion Houston-Sconiers and Treson Roberts with multiple counts

of first degree robbery and other offenses and alleged that each were armed with a firearm while

committing the crimes. With that, RCW 13.04.030(1)(e)(v)(A) required that the juvenile court

decline jurisdiction and that the defendants be tried in adult criminal court. The jury found the

defendants guilty of a number of the charged counts and found that each was armed with a

firearm during a number of the crimes. With that, RCW 9.94A.533 required the court to

sentence Houston-Sconiers to 31 years’ confinement, and Roberts to 28 years’ confinement, for

the firearm enhancements alone. The mandatory declination of juvenile court jurisdiction thus

led, in these circumstances of guilt, to the mandatory forfeiting of a 17 year old’s freedom for the

next 31 years of life. To effectively close off a life in this manner, as though by the workings of

a machine, offends the logic, although not the holdings of a series of recent United States

Supreme Court decisions. Under that logic, the mandatory declining of juvenile court

jurisdiction cannot be reconciled with the Eighth Amendment to the United States Constitution.

For that reason, I dissent.

        In 1988 the United States Supreme Court decided Thompson v. Oklahoma, 487 U.S. 815,

108 S. Ct. 2687, 101 L. Ed 2d 702 (1988), which set aside the death sentence for a murder

committed at age 15. The four-justice plurality concluded that the cruel and unusual punishment

prohibition of the Eighth Amendment prohibits the execution of a person who was under 16

years of age at the time of the offense. Justice O’Connor concurred in the judgment, but on the

grounds that the Oklahoma statute specified no minimum age at which the commission of a

crime could lead to the offender’s execution. Thompson, 487 U.S. at 857-58. The following

year, in Stanford v. Kentucky, 492 U.S. 361, 369-73, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989),



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the Court, relying on contemporary standards of decency and the lack of a national consensus,

concluded that the Eighth and Fourteenth Amendments did not prohibit the execution of juvenile

offenders for murder committed when over the age of 15 and under the age of 18.

       In 1996, relying in part on Stanford, our state Supreme Court upheld the mandatory

declination statute against an Eighth and Fourteenth Amendment challenge. In re Boot, 130

Wn.2d 553, 570, 925 P.2d 964 (1996). The court answered Thompson’s statement that “less

culpability should attach to a crime committed by a juvenile,” Thompson, 487 U.S. at 835, by

noting in the context of its substantive due process analysis that Thompson was a capital case and

holding:

       “There is no analogy between the death penalty and life imprisonment without
       parole. As the Supreme Court has observed, ‘the penalty of death is qualitatively
       different from a sentence of imprisonment, however long.”

Boot, 130 Wn.2d at 572 (alteration in original) (internal quotation marks omitted) (quoting State

v. Grisby, 97 Wn.2d 493, 498, 647 P.2d 6 (1982)).

       By 2005, the landscape had shifted. That year, the United States Supreme Court held that

the Eighth and Fourteenth Amendments forbid executing those who were under the age of 18

when their crimes were committed. Roper v. Simmons, 543 U.S. 551, 578-79, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005). Five years later, in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011,

176 L. Ed. 2d 825 (2010), as modified, (July 6, 2010), the Court extended the rationale of Roper

to hold that the Eighth Amendment prohibits a sentence of life imprisonment without possibility

of parole for a crime other than homicide committed by a juvenile. Two years later, the doctrinal

logic of Roper and Graham led to the holding of Miller v. Alabama, ___ U.S. ___, 132 S. Ct.

2455, 183 L. Ed. 2d (2012), on remand, 148 So.3d 78 (Nov. 08, 2013), that the Eighth




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Amendment prohibits mandatory sentences of life imprisonment without possibility of parole for

crimes committed while under the age of 18.

       From Thompson through Stanford and to Miller, the signature of these cases is a

willingness to abandon or extend prior holdings when needed to serve their underlying rationale:

a willingness informed by advancing neurological and psychological knowledge, as well as

ascending standards of decency. None of these cases, however, invalidate the mandatory

declining of juvenile court jurisdiction. In addition, each of them deal with the most severe

penalties possible, which are not the necessary result of a mandatory declining of juvenile court

jurisdiction. Nonetheless, the geology of these decisions, especially Roper and Miller, leads to

the conclusion, I believe, that the mandatory declining of juvenile court jurisdiction offends the

Eighth Amendment.

       The Eighth Amendment right to be free of excessive sanctions, according to Roper, flows

from the basic precept that “‘punishment for crime should be graduated and proportioned to [the]

offense.’” Roper, 543 U.S. at 560 (alteration in original) (quoting Atkins v. Virginia, 536 U.S.

304, 311, 122 S. Ct. 2242, 153 L. Ed. 2d (2002)). In Eighth Amendment analysis, the Court has

“affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress

of a maturing society’ to determine which punishments are so disproportionate as to be cruel and

unusual.” Roper, 543 U.S. at 561 (plurality opinion) (quoting Trop v. Dulles, 356 U.S. 86, 100-

01, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). Accordingly, the Court specified that its




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       beginning point is a review of objective indicia of consensus, as expressed in
       particular by the enactments of legislatures that have addressed the question. These
       data give us essential instruction. We then must determine, in the exercise of our
       own independent judgment, whether the death penalty is a disproportionate
       punishment for juveniles.

Roper, 543 U.S. at 564.

       After reviewing legislative enactments and other indicia of consensus, Roper turned to

the identification of three general differences between adults and juveniles central to an Eighth

Amendment analysis. First, juveniles more often display “‘[a] lack of maturity and an

underdeveloped sense of responsibility,’” often resulting in “‘impetuous and ill-considered

actions and decisions.’” Roper, 543 U.S. at 569 (alteration in original) (quoting Johnson v.

Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)). This susceptibility means

that their “‘irresponsible conduct is not as morally reprehensible as that of an adult.’” Roper,

543 U.S. at 570 (quoting Thompson, 487 U.S. at 835). Second, juveniles “are more vulnerable or

susceptible to negative influences and outside pressures, including peer pressure.” Roper, 543

U.S. at 569. This “vulnerability and comparative lack of control over their immediate

surroundings” give juveniles “a greater claim than adults to be forgiven for failing to escape

negative influences.” Id. at 570. Finally, “the character of a juvenile is not as well formed as

that of an adult. The personality traits of juveniles, less fixed.” Id. at 570. Thus, “it is less

supportable to conclude that even a heinous crime committed by a juvenile is evidence of

irretrievably depraved character.” Id. at 570.

       In finding these differences, also relied on in Miller and Graham, the Court drew on

developments in psychology and neuroscience showing “‘fundamental differences between

juvenile and adult minds—for example, in ‘parts of the brain involved in behavior control.’”




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Miller, 132 S. Ct. at 2464 (quoting Graham, 530 U.S. at 89-90).19 These differences, the Court

recognized, both lessened a juvenile’s moral culpability, Roper, 543 U.S. at 571, and enhanced

the prospect of reformation, Miller, 132 S. Ct. at 2465. With these differences, each decision

recognized that the penological justifications for imposing the harshest sentences were

diminished for juveniles. See Miller, 132 S. Ct. at 2465.

       Miller also noted that Graham had treated “‘juvenile life sentences as analogous to

capital punishment.’” Miller, 132 S. Ct. at 2467 (quoting Graham, 530 U.S. at 89-90) (Roberts,

C.J., concurring)). Accordingly, Miller also relied on a line of precedents demanding

individualized sentencing when imposing the death penalty. Miller, 132 S. Ct. at 2467-68.

Drawing on the difference between adults and juveniles noted above, the emerging neuroscience

confirming those differences, and the individualized sentencing required in death penalty cases,

Miller concluded that

       in imposing a State’s harshest penalties, a sentencer misses too much if he treats
       every child as an adult. To recap: Mandatory life without parole for a juvenile
       precludes consideration of his chronological age and its hallmark features—among
       them, immaturity, impetuosity, and failure to appreciate risks and consequences. It
       prevents taking into account the family and home environment that surrounds
       him—and from which he cannot usually extricate himself—no matter how brutal


19
  Our state Supreme Court has also recognized these neurological distinctions. In State v. O'Dell,
183 Wn.2d 680, ¶ 48 n.5, 358 P.3d 359 (2015) (alteration in original), the court noted the following
recent findings:
        Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile
        Justice, 85 NOTRE DAME L. REV. 89, 152 & [152] n.252 (2009) (collecting
        studies); MIT Young Adult Development Project: Brain Changes, MASS. INST.
        OF TECH., http://hrweb.mit.edu/worklife/youngadult/brain.html (last visited
        Aug. 4, 2015) (“The brain isn’t fully mature at . . . 18, when we are allowed to
        vote, or at 21, when we are allowed to drink, but closer to 25, when we are
        allowed to rent a car.”); Jay N. Giedd, Structural Magnetic Resonance Imaging
        of the Adolescent Brain, 1021 ANN. N.Y. ACAD. SCI. 77 (2004) (“The
        dorsallatera1 prefrontal cortex, important for controlling impulses, is among the
        latest brain regions to mature without reaching adult dimensions until the early
        20s” (formatting omitted)).

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       or dysfunctional. . . . And finally, this mandatory punishment disregards the
       possibility of rehabilitation even when the circumstances most suggest it.

Miller, 132 S. Ct. at 2468. For these reasons, the Court held that imposing a mandatory life

sentence without possibility for parole on juvenile offenders violates the Eighth Amendment.

       Turning now to the present issue, the declining of juvenile court jurisdiction faces the

defendant with a much harsher world of potential punishment, a point well illustrated by the

present case. Even though the Court followed the State’s recommendation and sentenced each

defendant to zero months’ confinement for each count, the court was required to sentence

Houston-Sconiers to 31 years of imprisonment and Roberts to 28 years due to the mandatory

firearm enhancements. Our Supreme Court’s recent holding in State v. O’Dell, 183 Wn.2d 680,

358 P.3d 359 (2015), that sentencing courts must consider the youthfulness of adult offenders in

deciding whether to grant an exceptional downward sentence, does nothing to blunt the force of

the mandatory firearm enhancements. In fact, the zero month base sentences imposed here

appear to be a largely ineffective attempt to exercise some discretion in considering the

defendants’ youth.

       The three basic differences between adult and juvenile offenders recognized by Roper,

Graham, and Miller are not confined to crimes that may merit the death penalty or life

imprisonment without parole. The impetuousness and lack of maturity, the vulnerability to

outside pressure, and the increased capacity for change and redemption each have little to do

with the nature of the crime and everything to do with the neurological and psychological

development of the individual. The three decisions recognized that these differences diminished

the penological justifications for imposing the harshest sentences on juveniles. By their nature,

these differences would also diminish the penological justifications for automatically subjecting

juveniles to many punishments fashioned for adults. As recognized by State v. L.W.,


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       [w]hile the goals of the adult Sentencing Reform Act (SRA) are overwhelmingly
       punitive, the goals of the [Juvenile Justice Act] are “more complex,” reflecting an
       intent to protect community safety while also responding to the needs of juvenile
       offenders. The statute “attempts to tread an equatorial line somewhere midway
       between the poles of rehabilitation and retribution.”

101 Wn. App. 595, 601-02, 6 P.3d 596 (2000) (footnote omitted) (quoting State v. Rice, 98 Wn.2d

384, 392, 655 P.2d 1145 (1982)). These differences between adults and juveniles observed by the

United States Supreme Court, and the recognized neurological substrate of those differences, call

directly into question our law mandating that 16 and 17 year olds committing certain crimes be

punished as if they were adults.

       Roper, Graham, and Miller also rested their holdings on the fact that the most severe

penalties, death and life without parole, were at stake. Using their analysis to question

mandatory declination would thus stretch the rationale of those decisions well beyond the use to

which they put it. Such, though, was the step taken by Graham and Miller in using Roper’s

rationale for the death penalty to justify constitutional restrictions on life sentences without

possibility of parole. Graham and Miller took that step by characterizing “‘juvenile life

sentences as analogous to capital punishment.’” Miller, 132 S. Ct. at 2467 (quoting Graham,

560 U.S. at 89-90). Life without parole, the Court stated, shares “some characteristics with death

sentences that are shared by no other sentences.” Graham, 560 U.S. at 69; Miller, 132 S. Ct. at

2466. Imprisoning an offender until he dies, Miller stated, alters the remainder of his life “‘by a

forfeiture that is irrevocable.’” Miller, 132 S. Ct. at 2466 (quoting Graham, 560 U.S. at 69).

       Sentencing a 17 year old to 31 years’ imprisonment, even with the speculative possibility

of sentence reduction, works a similar forfeiture. Walking out of prison as a 48 year old,

Houston-Sconiers will have lost his richest years for experience and for growth, the years with

the time and the reasons to find one’s footing, the years with the most scope to shape one’s



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future. The loss of those years is as irrevocable and as potentially deadening as is the loss of the

remaining years in a life sentence. The forfeiture is of similar quality as that at stake in Miller.

       Some crimes by juveniles may warrant such a forfeiture. The lesson of Miller, though, is

that the Eighth Amendment does not allow the possibility of forfeitures of such magnitude to be

raised automatically for crimes committed by children, as though by the touch of gear on gear.

Instead, the forfeiture must be allowed through the exercise of human discretion, taking into

account all that law and science tells us about the nature of juveniles and the possibility for

amendment of life. Our mandatory declination statute denied Houston-Sconiers and Roberts that

chance. Under the logic of Roper, Graham, and Miller, that denial violated the Eighth

Amendment.

       These United States Supreme Court decisions also eviscerate Boot’s foundations. Roper

held that Stanford, one of the principal decisions Boot relied on, to be “no longer controlling on

this issue.” Roper, 543 U.S. at 574. Graham and Miller repudiated Boot’s view that there is no

analogy between juvenile life sentences and capital punishment. Miller, 132 S. Ct. at 2467. The

Boot court did not have the benefit of the present state of neurological research and,

understandably, did not recognize the differences between adult and juvenile offenders shown by

that research. Boot also did not have the benefit of Miller’s focus on whether a mandatory

punishment alters the remainder of a juvenile’s life “‘by a forfeiture that is irrevocable.’” Miller,

132 S. Ct. at 2466 (quoting Graham, 560 U.S. at 70).

       For these reasons Boot should be deemed no longer controlling. The arc of reasoning




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drawn from Roper through Graham and to Miller does not end with the holding of the latter.

That arc leads also to the demise of mandatory declination under the Eighth Amendment.




                                           ____________________________________
                                           BJORGEN, J.




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