 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                   No. 78057-3-I
                         Respondent,
                                                   DIVISION ONE
               V.

 JERRY BRAND BOGART,                               UNPUBLISHED OPINION

                         Appellant.                FILED: September 16, 2019


       SMITH, J.    —   Jerry Bogart challenges the judgment and sentence imposed

pursuant to his jury conviction for first degree assault with a deadly weapon and

unlawful possession of a firearm. He contends that the trial court erred when it

declined to give a cautionary instruction regarding the testimony of a prison

informant. But the trial court’s general instruction on witness credibility instructed

the jury to consider “any personal interest that the witness might have in the

outcome or the issues.” This instruction was sufficient to allow Bogart to argue

that the witness had a motivation to lie. Moreover, we have previously held that

an instruction to view a particular witness’s testimony with caution is improper

because it constitutes an impermissible comment on the evidence.

       However, we agree with the parties that the trial court erroneously

imposed a firearm enhancement despite the jury returning a special verdict that

Bogart was armed with a deadly weapon. The criminal filing fee and DNA
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(deoxyribonucleic acid) collection fee must also be stricken. We remand for

resentencing consistent with this opinion. In all other respects, we affirm.

                                       FACTS

       Kelly LeMoigne and his wife, Vicki Ecklund, were long-time users of

methamphetamine.1 Ecklund had worked off and on as a paid informant for law

enforcement dating back to 1996. At some point in 2015 or 2016, both Ecklund

and LeMoigne provided information to the police about a drug dealer named

James Stevens, resulting in Stevens’ arrest.

       In the early morning hours of March 23, 2016, Ecklund contacted Bogart,

from whom she and LeMoigne had bought methamphetamine in the past.

Ecklund told Bogart that LeMoigne would contact him to arrange a time and

meeting place to buy methamphetamine. However, Bogart was friends with

Stevens and “[h]omicidely” angry that Ecklund and LeMoigne “were rats.”

       When LeMoigne arrived at the meeting place, Bogart was already there,

standing in front of his car. LeMoigne parked so his car was facing Bogart’s car,

nose to nose. Without getting out of his car, LeMoigne handed Bogart money. In

exchange, LeMoigne received a cigarette pack that he believed contained

methamphetamine. He later discovered it contained only salt.

       LeMoigne turned to put the cigarette pack in his center console. When he

turned back around, he “got sucker punched.” Bogart called LeMoigne a “rat” and

said, “This is for James’s niece.” Bogart drew back his hand a second time.


       1  At the time of trial, LeMoigne was suffering from advanced esophageal cancer
and testified by way of a perpetuation deposition.

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Believing Bogart was going to hit him again, LeMoigne sped off, hitting Bogart’s

car. Bogart fired several shots at LeMoigne as he drove off.

       While driving back to his house, LeMoigne received a voice mail message

from Bogart. In the message, Bogart asked, in a friendly tone of voice, where

LeMoigne went and stated he was concerned about him. Apparently believing

that he had terminated the call with LeMoigne, Bogart then proceeded to have a

separate conversation with someone on his end of the phone. In a threatening

tone, Bogart stated that LeMoigne and Ecklund were “rats.” He stated that he

had tried to kill LeMoigne and that if he saw him again he was ‘“[gjoing to kill

him.” Bogart’s conversation was recorded on LeMoigne’s voice mail.

       The State charged Bogart with first degree assault with a firearm and two

counts of first degree unlawful possession of a firearm. Prior to trial, Bogart

shared a jail cell with Tyler Vorderstrasse for approximately four to six weeks.

Vorderstrasse had known Bogart for several years, and they shared many mutual

friends. Vorderstrasse also knew LeMoigne, Ecklund, and Stevens.

      Vorderstrasse testified at trial. He stated that while they were cellmates,

Bogart told him that he punched LeMoigne and called him a “rat” because

LeMoigne and Ecklund had done a “controlled buy” involving Stevens. Bogart

also said he fired shots as LeMoigne drove away, hitting LeMoigne’s car. Bogart

told Vorderstrasse that after he shot at LeMoigne, he took a shower, washed his

clothes to remove any gunshot residue, and cleaned his gun. He also detailed

plans to hide his own car, which had been struck by his bullets.




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       Vorderstrasse testified that he voluntarily provided this information to law

enforcement “with no offer of anything in return.” But Vorderstrasse

acknowledged that the State ultimately agreed to reduce a pending charge

against him in exchange for his testimony against Bogart. And Vorderstrasse

testified that he had previously cooperated with law enforcement in a different

matter and knew that if he “gave information [he] would get a deal.”

       Bogart requested that the jury be instructed to consider the testimony of

an informant “with greater caution than that of other witnesses.” Bogart proposed

the following jury instruction, based on a Ninth Circuit model jury instruction:

       You have heard testimony from Tyler Vorderstrasse. That
       testimony was given in exchange for a promise by the government
       that the witness receive beneficial treatment from the government
       in connection with this case.

       For this reason, in evaluating the testimony of Tyler Vorderstrasse,
       you should consider the extent to which or whether his testimony
       may have been influenced by this beneficial treatment.

       In addition, you should examine the testimony of Tyler
       Vorderstrasse with greater caution than that of other witnesses.
The trial court declined to give the instruction.

       Bogart testified in his own defense. He admitted that he planned to give

LeMoigne a package containing salt instead of methamphetamine and then to

punch LeMoigne. But he denied that he intended to cause LeMoigne great bodily

harm by shooting at him. Instead, he claimed he did so in self-defense, believing

that LeMoigne was going to hit him with his car.

       A jury convicted Bogart as charged. Bogart appeals.




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                                    DISCUSSION

       Bogart contends that the trial court violated his right to present a defense

when it refused to give the instruction regarding Vorderstrasse’s testimony. Citing

federal case law and academic studies, he argues that “the testimony of a prison

informant is inherently untrustworthy” and “is strongly correlated to wrongful

convictions.”

       Instructions are adequate if they allow a party to argue its theory of the

case and do not mislead the jury or misstate the law. State v. Barnes, 153 Wn.2d

378, 382, 103 P.3d 1219 (2005). We review a trial court’s decision to give a jury

instruction for abuse of discretion if the decision was based on a determination of

fact. State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015). If the

decision was based on a legal conclusion, it is reviewed de novo. Condon, 182

Wn.2d at 316.

       Here, Bogart’s proposed instruction was not necessary in order for him to

argue that Vorderstrasse’s testimony was inherently untrustworthy. Bogart

extensively cross-examined Vorderstrasse on what benefit he received for his

testimony and at what point he received it. And the jury was already instructed on

how to evaluate the credibility of witnesses. The trial court’s first instruction to the

jury provided as follows:

              You are the sole judges of the credibility of each witness.
       You are also the sole judges of the value or weight to be given to
       the testimony of each witness. In considering a witness’s testimony,
       you may consider these things: the opportunity of the witness to
       observe or know the things he or she testifies about; the ability of
       the witness to observe accurately; the quality of a witness’s
       memory while testifying; the manner of the witness while testifying;


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       any personal interest that the witness might have in the outcome or
       the issues; any bias or prejudice that the witness may have shown;
       the reasonableness of the witness’s statements in the context of all
       of the other evidence; and any other factors that affect your
       evaluation or belief of a witness or your evaluation of his or her
       testimony.
(Emphasis added.) It is not error for a trial court to refuse to give a specific

instruction when a more general instruction adequately explains the law and

allows each party to argue its theory of the case. State v. Hathaway, 161 Wn.

App. 634, 647, 251 P.3d 253 (2011). Because Bogart was able to argue his

theory of the case under the instructions given, the trial court did not abuse its

discretion in declining to give it.

       Relying on State v. Carothers, 84 Wn.2d 256, 267-68, 525 P.2d 731

(1974), Bogart contends that the informant instruction is “no different from the

pattern instruction on accomplice testimony in WPIC 6.05, which the Supreme

Court has ruled is not a comment on the evidence.” But in Carothers, the

Washington Supreme Court held that such an instruction is proper only if it

instructs the jury to view any accomplice testimony with caution. It noted that an

instruction to view the testimony of a particular witness with caution would be an

improper comment on the testimony of that witness. Carothers, 84 Wn.2d at 267-

68.

       Instead, this court has previously held that a trial court does not abuse its

discretion in declining to give an informant instruction. In State v. Hummel, 165

Wn. App. 749, 266 P.3d 269 (2012), we noted that no Washington case requires

a jury to be instructed as to the potential untrustworthiness of informant

testimony. We also concluded that the informant instruction was more similar to


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an instruction cautioning the jury about the untrustworthiness of cross-racial

eyewitness testimony—which was held to be a comment on the evidence in

State v. Allen, 161 Wn. App. 727, 255 P.3d 784, affd, 176 Wn.2d 611 294 P.3d

679 (2013)—than it was to the accomplice instruction suggested by Bogart.2

“Any instruction that could lead the jury to infer that the trial court believed or

disbelieved a witness constitutes a judicial comment on the evidence.” Allen, 161

Wn. App. at 742 (citing State v. Faucett, 22 Wn. App. 869, 876, 593 P.2d 559

(1979)). Bogart has not convinced us to depart from our earlier rationale in

Hummel.

       Bogart next contends, and the State concedes, that the trial court

erroneously imposed a firearm enhancement when the jury returned a special

verdict finding that Bogart was armed with a deadly weapon. We accept the

State’s concession, vacate the firearm enhancement, and remand for

resentencing consistent with the jury’s special verdict.3

       Finally, Bogart challenges the criminal filing fee and DNA collection fee

imposed as part of his sentence. Bogart contends, and the State concedes, that

both fees must be stricken because he is indigent and because his DNA was

       2  We note, as we did in Allen, that such an instruction might be appropriate in a
federal case, “where there is no constitutional prohibition from the judge commenting on
matters of fact,” but not in Washington, where our constitution contains such a prohibition.
Allen, 161 Wn. App. at 740.
        ~ Bogart also contends that because the jury did not find he was armed with a
firearm, the trial court must vacate the order to register as a felony firearm offender. But
ROW 9.41.330 provides: “[Wjhenever a defendant in this state is convicted of a felony
firearm offense .   . the court must consider whether to impose a requirement that the
                        .


person comply with the registration requirements of ROW 9.41.333 and may, in its
discretion, impose such a requirement.” Bogart was convicted of unlawful possession of
a firearm, which is a “felony firearm offense.” RCW 9.41 .010(1 0)(a). Thus, the trial court
had the authority to impose the registration requirement.

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No. 78057-3-1/8


collected following a prior felony conviction. Although these fees were mandatory

when imposed, the Washington Supreme Court has since held in State v.

Ramirez, 191 Wn.2d 732, 746-50, 426 P.3d 714 (2018), that courts may not

impose discretionary legal financial obligations on an indigent criminal defendant.

We accept the State’s concession and remand for the trial court to strike these

fees from the judgment and sentence.

      We affirm Bogart’s convictions. We remand to the trial court to vacate the

firearm enhancement, resentence Bogart based on the deadly weapon

enhancement, and strike the criminal filing fee and DNA collection fee from the

judgment and sentence.




                                                       /
WE CONCUR:
