. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  STATE OF WASHINGTON,
                                                   DIVISION ONE
                       Respondent,
                                                   No. 77833-1-1
                V.
                                                   UNPUBLISHED OPINION
  EBRIMA DARBOE,

                       Appellant.                  FILED: April 15, 2019



        DWYER, J. — Ebrima Darboe was tried and convicted by jury verdict of
 identity theft in the second degree, theft in the second degree—access device,

 vehicle prowling, and bail jumping. He appeals, asserting that the trial court

 erroneously denied a requested missing witness jury instruction, allowed the

 admission of testimonial hearsay in violation of his Sixth Amendment rights,

 erroneously declined to grant a first-time offender waiver at his sentencing, and

 imposed certain legal financial obligations in violation of current law. While we

 find his first three contentions to be without merit, we remand for amendment of

 his judgment and sentence to delete the requirement that he pay a criminal filing

 fee.
No. 77833-1-112


                                           I

       Hurnake Johal left his wallet, which contained his driver's license, credit

and debit cards, and other personal items, in his vehicle. His son borrowed the

vehicle and parked it in the parking lot at the LA Fitness in Mill Creek. While his

son was inside the gymnasium, one of the vehicle's windows was shattered by a

thief, who removed Johal's wallet, cash, and a phone charging cable.

       Justin Taylor, a bystander, witnessed the theft and reported it to the

police. Officer Christine White of the Mill Creek Police Department arrived at the

scene and observed shattered glass both inside and outside of Johal's vehicle.

Officer White used the license plate number to determine that the vehicle

belonged to Johal. She also spoke with Taylor, who said that he had seen the

break-in occur and saw the thief fleeing in a white Jeep. He provided Officer

White with the Jeep's license plate number.

       Officer White researched the Jeep's license plate number and determined

that it was registered to Ebrima Darboe.

       After Johal's son exited the gymnasium, he met with Officer White, saw

the broken window, and contacted his father. Johal then contacted the banks

that had issued his credit cards to report the theft. He was informed that his

credit cards had already been used.

       Johal went to the scene of the theft. Once there, Officer White informed

him that, in her experience, a thief will generally use stolen credit cards quickly to

make fraudulent purchases. Johal confirmed that he had been provided with a

list of unauthorized transactions by the cards' issuing banks. Johal reviewed a




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list of fraudulent transactions with the police that involved specific purchases on

multiple of his credit cards.

       The next day, Detective Tara Hoflack continued the Mill Creek Police

Department's investigation. She obtained surveillance video from several stores

documenting fraudulent use of the credit cards. Officers thereafter located

Darboe's Jeep, had it towed to the police station, and applied for a search

warrant.

      That afternoon, Darboe called the police to report the Jeep as stolen.

Detective Hoflack responded and met him in the parking lot adjacent to his

apartment complex. When Hoflack told him that she was investigating fraudulent

charges made on stolen credit cards, Darboe stated that his friend "Jaba" had

borrowed the Jeep and returned it in the early morning.

       During their conversation, Hoflack noticed Darboe's distinctive clothing:

black jeans with a white T-shirt, a Seattle Seahawks cap with a reflective sticker

on the brim, and teal, high-top Nike sneakers. Darboe stated that Jaba had been

wearing the same clothes the previous night and had given them to Darboe as a

gift for letting him borrow the Jeep. Later review of the security footage from

stores where the fraudulent transactions were recorded showed Darboe wearing

these clothes. Police also determined that the time stamps in security footage of

Darboe's transactions matched the recorded time of fraudulent purchases

reported by Johal and the issuing banks.

      Searching the Jeep, Detective Hoflack and Detective Tyrone Hughes

observed that the vehicle's license plate was placed upside down in the front




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window, similar to the positioning of the plate in a security video from the night

before. Hughes also noted the presence of a phone charging cable.

       Subsequently, Darboe was arrested. Darboe was charged with identity

theft in the second degree; an amended information added seven more counts of

identity theft in the second degree, three counts of theft in the second degree—

access device, a count of vehicle prowling, and a count of felony bail jumping.

       Before trial, the State subpoenaed Justin Taylor and contacted him and

his parents, with whom he lived, in an attempt to ensure that he would be able to

testify as to what he had seen. While the prosecuting attorney stated that

Taylor's appearance was not optional, he also informed Taylor's family that he

would probably not be arrested solely for ignoring the subpoena. On the day

Taylor was supposed to testify, his parents informed the prosecutor that he had

gone hunting. Taylor was unreachable by telephone. He did not testify. The trial

court allowed Officer White to relate Taylor's statement about the Jeep's license

plate number in her testimony, ruling that the statement was not being offered for

the truth of the matter asserted.

       At the close of trial, Darboe requested that the jury receive a "missing

witness" instruction, which would expressly allow the jury to infer that Taylor's

testimony would have been damaging to the State's case. The trial court denied

this request.

       Ultimately, Darboe was convicted on all charges. The trial court imposed

standard range sentences of 50 months on each identity theft conviction, 22

months for each conviction of theft of an access device, 51 months for bail



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No. 77833-1-1/5

jumping, and a suspended sentence for vehicle prowling. The actual term of

confinement imposed was 51 months. He now appeals.

                                          11

       Darboe first contends that the trial court abused its discretion by denying

his request for a missing witness instruction. Darboe asserts that, because the

State did not call Taylor as a witness, he was entitled to an instruction that the

jury could infer that Taylor's testimony would have been unfavorable to the

State's case against him. We disagree.

       A trial court's refusal to issue a requested instruction, when based on the

evidence in the case, is reviewed for abuse of discretion. State v. Walker, 136

Wn.2d 767, 771-72, 966 P.2d 883(1998). A trial court abuses its discretion only

when its decision is "manifestly unreasonable or based upon untenable grounds

or reasons." State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

       A missing witness instruction informs the jury that it may infer from a

witness's absence at trial that his or her testimony would have been unfavorable

to the party who would have logically called that witness. State v. Flora, 160 Wn.

App. 549, 556, 249 P.3d 188 (2011). Such an instruction is proper when the

witness is peculiarly available to one of the parties, Flora, 160 Wn. App. at 556,

and the circumstances at trial establish that, as a matter of reasonable

probability, the party would not have knowingly failed to call the witness "unless

the witness's testimony would be damaging." State v. Davis, 73 Wn.2d 271, 280,

438 P.2d 185 (1968), overruled on other grounds by State v. Abdulle, 174 Wn.2d

411, 275 P.3d 1113(2012). However, no such inference is warranted when the




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No. 77833-1-1/6

witness is unimportant or the testimony would be cumulative. State v. Blair, 117

Wn.2d 479, 489, 816 P.2d 718 (1991). The party against whom the missing

witness rule would operate is also entitled to explain that witness's absence to

the court and thereby avoid operation of the inference. Blair, 117 Wn.2d at 489;

accord State v. Montgomery, 163 Wn.2d 577, 599, 183 P.3d 267 (2008).

       Whether a witness is peculiarly available to a party depends upon the

nature of the relationship between the witness and that party. Davis, 73 Wn.2d

at 277. In Davis, the court determined that an uncalled witness, a member of the

law enforcement agency that had investigated the defendant, "worked so closely

and continually with the county prosecutor's office with respect to this and other

criminal cases as to indicate a community of interest between the prosecutor and

the uncalled witness." 73 Wn.2d at 278. Similarly, in Blair, the court determined

that missing witnesses were peculiarly available to the defendant when the

names of the witnesses—with whom the defendant had both personal and

business relationships—were "known to defendant alone." 117 Wn.2d at 490.

       Here, the trial court did not abuse its discretion by refusing to give a

missing witness instruction. First, Taylor was not shown to have been peculiarly

available to the State. A witness is not peculiarly available merely by virtue of

being subject to the subpoena power. Blair, 117 Wn.2d at 490. Rather, as our

state Supreme Court has explained:

              For a witness to be "available" to one party to an action,
       there must have been such a community of interest between the
       party and the witness, or the party must have so superior an
       opportunity for knowledge of a witness, as in ordinary experience
       would have made it reasonably probable that the witness would



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No. 77833-1-1/7

      have been called to testify for such party except for the fact that his
      testimony would have been damaging.

Davis, 73 Wn.2d at 277(emphasis added).

       Here, in contrast, Taylor had no professional relationship with the

prosecutor. Indeed, Darboe's attorney conceded that "Mr. Taylor. . . is not

peculiarly available to the State, given he is not law enforcement." The parties

had equal access to witness information.

      The State subpoenaed Taylor, whose parents confirmed his receipt of the

subpoena. The prosecutor called Taylor's parents at least three times in an

attempt to ensure that Taylor would be available to testify at trial. The prosecutor

told them that the subpoena meant that failure to appear was "not an option."

The fact that the prosecutor admitted that the State would probably not direct its

limited resources to arrest Taylor for failure to comply with the subpoena does

not negate the fact that he was equally available to both parties.

      The reason that Taylor was not called to testify was satisfactorily

explained on the record. The prosecutor explained to the trial court the efforts

made to secure Taylor's testimony, that Taylor had appeared at the prosecutor's

office for an interview, and that the prosecutor thought that Taylor would be

present to testify at trial. Further, the prosecutor stated that much of his

communication with Taylor had been facilitated by Taylor's parents, who

informed him of Taylor's decision to leave for a camping and hunting excursion,

and that Taylor was without telephone reception. The record thus shows that the

State made a good faith effort to ensure that Taylor would be available at trial, an




                                          7
No. 77833-1-1/8


effort that failed solely due to Taylor's unilateral decision, which was satisfactorily

explained to the trial judge.

       The trial court had these facts before it when it determined not to give the

missing witness instruction, concluding that Taylor was not "peculiarly available"

to the State and that his absence was explained. These were tenable grounds

for the court's decision. Thus, there was no abuse of discretion.

                                          III

       Darboe next contends that Taylor's statements to the police, in which he

offered a description of Darboe's vehicle and license plate number constituted

testimonial hearsay. Thus, he avers, testimony as to the statements violated his

confrontation clause rights. The State responds that Taylor's comments were not

offered for their truth, that they were thus not testimonial, and that, even if the

statements were testimonial, their admission was harmless error in light of the

abundant other evidence that Darboe committed the crime. Because the trial

court correctly concluded that the statements were not offered for the truth of the

matters asserted, there was no error.

       We review de novo an alleged violation of the confrontation clause. State

v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). The confrontation

clause bars the admission of "testimonial" hearsay in criminal trials unless the

declarant is unavailable to testify and the defendant had a prior opportunity for

cross-examination. U.S. CONST. amend. VI; WASH. CONST. art. 1, § 22; Crawford

v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Hearsay is defined as "a statement, other than one made by the declarant while


                                           8
No. 77833-1-1/9


testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." ER 801(c). The confrontation clause does not preclude the

use of testimonial statements for purposes other than establishing the truth of the

matter asserted. Crawford, 541 U.S. at 60 n.9 (citing Tennessee v. Street, 471

U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)).

       "Testimony" has been defined as la]solemn declaration or affirmation

made for the purpose of establishing or proving some fact." Crawford, 541 U.S.

at 51 (alteration in original)(quoting 2 N. WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE(1828)). Whether a statement is testimonial is determined

by "whether, in light of all the circumstances, viewed objectively, the 'primary

purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial

testimony." Ohio v. Clark,        U.S.     , 135 S. Ct. 2173, 2180, 192 L. Ed. 2d

306(2015)(alteration in original)(quoting Michigan v. Bryant, 562 U.S. 344, 358,

131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)).

       Among the factors employed in determining this primary purpose are

whether the statement is made to assist in response to an ongoing emergency

and the informality of the situation in which the interrogation took place. State v.

Burke,       Wn. App. 2d _,431 P.3d 1109, 1118 (2018)(citing Clark, 135 S.

Ct. at 1280). Neither factor, however, conclusively establishes the primary

purpose of a conversation. Bryant, 562 U.S. at 366.

         It is reasonable to infer that the primary purpose of Taylor's statements

were testimonial. An objective evaluation of the "circumstances in which the

encounter occurs and the statements and actions of the parties" demonstrates


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No. 77833-1-1/10


that the primary purpose of Officer White's investigation was not to meet an

ongoing emergency. Bryant, 562 U.S. at 359. The record does not indicate that

the vehicular break-in was occurring in the same instant as Taylor's initial

telephone call to the police. The only ongoing emergency was the unauthorized

use of Johal's credit cards, which Officer White addressed by informing Johal of

the break-in and advising him of appropriate steps to take. Darboe, having left

the scene, did not pose a physical threat to Taylor, Johal, or Officer White.

       Although Officer White's conversation with Taylor may have been informal

and took place at the scene of the crime, "informality does not necessarily

indicate the presence of an emergency or the lack of testimonial intent." Bryant,

562 U.S. at 366. The other circumstances existing at the time of the

conversation clearly indicate that the statements concerning the description and

license plate number of Darboe's vehicle were not made to assist in addressing

an ongoing emergency but to obtain evidence potentially relevant in a later

criminal proceeding.

       Determining that the statements' primary purpose was testimonial,

however, does not end our inquiry. To give rise to a confrontation clause

violation, the statements must also have been offered for their truth. Crawford,

541 U.S. at 60 n.9. The record indicates that Taylor's statements were not

offered to prove that Darboe was the person who drove to the LA Fitness parking

lot and broke into Johal's vehicle. Rather, they were offered to show why Officer

White took the subsequent investigative steps that were undertaken.




                                       -10-
No. 77833-1-1/11


         Darboe's confrontation clause rights were not violated. There was no

error.

                                           IV

         In calculating the standard sentence range for a felony offense, the

sentencing court must consider the defendant's criminal history and the

seriousness of the criminal offense. RCW 9.94A.505(1), (2)(a), .510. However,

the first-time offender waiver statute, RCW 9.94A.650, provides, in pertinent part,

"In sentencing a first-time offender the court may waive the imposition of a

sentence within the standard sentence range." RCW 9.94A.650(2)(emphasis

added). Whether to grant a request for a first-time offender waiver sentence is

thus discretionary. State v. Johnson, 97 Wn. App. 679, 682, 988 P.2d 460

(1999). However,"where a defendant has requested a sentencing alternative

authorized by statute, the categorical refusal to consider the sentence, or the

refusal to consider it for a class of offenders, is effectively a failure to exercise

discretion and is subject to reversal." State v. Grayson, 154 Wn.2d 333, 342,

111 P.3d 1183(2005).

         Darboe contends that the trial court denied his request for a first time

offender waiver based only on "the seriousness level of the offense" and his

failure to show that he would benefit from treatment or community custody. In

doing so, he misstates the trial court's ruling. With regard to Darboe's request for

the waiver, the trial judge stated:

         First time offender waivers from my perspective can be an
         appropriate sentence structure for an individual when that individual
         benefits from some opportunities of counseling or treatment or have
No. 77833-1-1/12

       some other means of community restitution that are inconsistent
       with the more traditional means of being held accountable for a
       time, that means time in custody or prison or jail. The seriousness
       of these offenses are not consistent with either [the] policy of first
       time offender waiver[s] as I understand it, or my practice of allowing
       first time offender waivers for individuals.

       These statements indicate that the trial court did not categorically refuse to

grant the waiver based on the mechanical application of an arbitrary rule.

Rather, the court carefully considered Darboe's personal situation, weighed the

benefits of granting his request, and concluded that a standard range sentence

was more appropriate. Darboe's offender score after his convictions was 10—

serious enough to be a tenable basis for the trial court to rule out the requested

alternative. Thus, the trial court did not abuse its discretion. There was no error.

                                         V

       The statute in effect at the time of Darboe's sentencing, former RCW

36.18.020(2)(h), provided for the mandatory assessment of a $200 filing fee upon

a criminal's conviction or plea of guilty. This was amended effective June 7,

2018, to exclude indigent defendants from its scope. These changes are applied

retroactively. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).

Darboe asks that we remand to strike the filing fee. The State concedes that this

is necessary. Thus, we remand for amendment of the judgment and sentence to

strike the filing fee.




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No. 77833-1-1/13


      Affirmed in part and remanded.



WE CONCUR:


      '/1-
       iIJk




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