                                                                     'OJ< 10 fill Q:3k



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 72363-4-1
                      Respondent,
       v.                                         DIVISION ONE


CHANDRA M. WITT,                                  UNPUBLISHED OPINION


                      Appellant.                  FILED: November 10, 2014


       Leach, J. — Chandra Witt appeals her conviction for trafficking in stolen

property in the second degree. She argues that the trial court should not have

admitted her statement to police that she traded methamphetamine for stolen

copper tubing because it was not relevant.        She also contends that the court

erred by imposing legal financial obligations (LFOs) without considering her

ability to pay. Witt assigns error to the trial court's failure to advise her orally of

the loss of her right to possess a firearm, which the State concedes. And in a

statement of additional grounds, Witt alleges ineffective assistance of counsel.

Because the trial court did not abuse its discretion in admitting Witt's statement

and the allegations in her statement of additional grounds have no merit, we

affirm Witt's conviction. But we remand for a resentencing hearing for the trial

court to consider Witt's ability to pay LFOs and to advise her orally of the loss of

her firearm rights.
No. 72363-4-1 / 2




                                     Background

       On June 20, 2012, an employee at the Department of Licensing (DOL)

offices in the city of Hoquiam discovered that copper tubing from the building's air

conditioning system had been cut and removed from the outside of the building.

Sergeant Sydney Strong of the Hoquiam Police Department responded to the

employee's 911 call. The following day, Strong recovered about 14 feet of tubing

that had been sold to Butcher's Scrap & Metal, a business located less than a

mile from the DOL offices. Strong also obtained the receipt for the transaction.

The driver's license recorded at the time of sale identified the seller as Anna


Owens-Pierce.


       Strong brought the tubing back to the DOL building, accompanied by a

local technician specializing in heating, air conditioning, and refrigeration. The

technician identified the tubing as refrigeration tubing and confirmed that it came

from the DOL building by aligning pieces of it with stubs left at the building.

       Several days later, Strong obtained a warrant to search Chandra Witt's

apartment and placed Witt under arrest.        In an oral statement to Strong, Witt

acknowledged receiving copper pipe at her apartment from Rick Cottrell. She

told Strong that she believed the pipe was stolen because Cottrell "does that sort

of thing." She signed a written statement, in which she admitted giving Cottrell

"about a $20.00 sack of meth" for the copper pipe, which she "assumed" was

stolen "because he wouldn't get it anywhere else." Witt stated that she "was

going to scrap" the pipe, but that after she returned from a brief absence, the
No. 72363-4-1 / 3




pipe was gone, as was Michelle Hinkle, an acquaintance to whom Witt said she

gave "a little bit of meth" that day in exchange for some housekeeping.

       The State charged Witt with trafficking in stolen property in the first

degree. In her written statement, Witt also acknowledged selling "small amounts

of meth" and keeping marijuana for her personal use. The court redacted this

portion of the statement from the version the jury received but admitted the rest

of the statement, including Witt's description of trading drugs for the pipe, as

"relevant as to the knowledge of what's going on as far as this being an illegal

transaction and a possession of something that was stolen."

       At trial, Hinkle, who was convicted for her own involvement with Owens-

Pierce in the sale of the pipe, testified for the State. She stated that Witt gave

her the pipe as payment for the housekeeping work. Two witnesses testified for

the defense. A jury was unable to reach a unanimous verdict on the charged

offense1 but found Witt guilty of the lesser included offense of trafficking in stolen

property in the second degree.2

       The judgment and         sentence    imposed    a   mandatory $500       victim

assessment and $100 DNA (deoxyribonucleic acid) collection fee, as well as

$200 in court costs, $500 for court-appointed attorney fees, and $72 in restitution

to Butcher's Scrap & Metal. At sentencing, there was no discussion about Witt's

current or likely future ability to pay LFOs. And on Witt's judgment and sentence



       1 RCW 9A.82.050 ("knowingly traffics in stolen property").
       2 RCW 9A.82.055 ("recklessly traffics in stolen property").
No. 72363-4-1 / 4




form, the court did not check any of the boxes that would indicate its findings

about Witt's ability to pay. The judgment and sentence notifies Witt in writing of

the loss of her right to own or possess a firearm. But at sentencing, the court did

not orally advise Witt of her loss of this right.

       Witt appeals.

                                        Analysis

ER 404(b)

       First, Witt challenges the trial court's admission of her statement to police

that she obtained the copper pipe in exchange for methamphetamine.             She

argues that this evidence was not relevant and that its unfairly prejudicial effect

"greatly outweighed" its "minimal probative value." She argues further that her

statements do not fall within the res gestae of the trafficking charge because they

"do[ ] not give immediate context or complete a necessary part of the story." She

argues that the admission of this evidence violated ER 404(b) and constituted a

prejudicial abuse of discretion.

       "We review the trial court's interpretation of ER 404(b) de novo as a

matter of law."3 We then review a trial court's ruling on the admissibility of ER

404(b) evidence for abuse of discretion and will reverse only if the court's

exercise of discretion is manifestly unreasonable or based on untenable grounds

or reasons.4




       3 State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).
       4 State v. Maqers. 164Wn.2d 174, 181, 189 P.3d 126(2008).
No. 72363-4-1 / 5




       ER 404(b) prohibits evidence of other crimes, wrongs, or acts to prove

character and show action in conformity with it.5 However, this evidence may be

admissible for other purposes, "such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident."6 The

res gestae or "same transaction" exception to ER 404(b) allows evidence of other

crimes or acts to "complete the story of a crime or to provide the immediate

context for events close in both time and place to the charged crime."7 Before

admitting this evidence, the trial court must (1) find by a preponderance of the

evidence that the misconduct occurred, (2) identify the purpose for which the

evidence is offered, (3) determine if the evidence is relevant to prove an element

of the crime charged, and (4) weigh the probative value of the evidence against

its prejudicial effect.8

          In a preliminary hearing, the prosecutor offered Witt's postarrest

statement, arguing that Witt's admission that methamphetamine was the

currency for the transaction was "all part and parcel of the sale of the copper pipe

and I think it goes as part of the res gestae. And ... I think that reflects upon a

person's knowledge that the property was stolen." Defense counsel requested

that "that specific drug not be mentioned" as unduly prejudicial. Both parties

agreed to the redaction of the two final paragraphs of Witt's statement, where


       5 ER 404(b); State v. Freeburq, 105 Wn. App. 492, 497, 20 P.3d 984
(2001).
       6 ER 404(b).
       7 State v. Lillard. 122 Wn. App. 422, 432, 93 P.3d 969 (2004).
       8 In re Pet, of Coe, 175 Wn.2d 482, 493, 286 P.3d 29 (2012).
No. 72363-4-1 / 6




she admitted to selling methamphetamine on other occasions and possessing

marijuana.

       The court agreed with the State's ER 404(b) res gestae and knowledge

arguments:

      [l]t is part of the res gestae. In fact, it's actually the compensation
      that was allegedly paid for the bucket of piping that's at issue in this
      case. ... It shows knowledge to some extent by circumstantial
      evidence.


             I recognize I have to do somewhat of a balancing, but the
      balancing is whether it's relevant. I believe it's very relevant as to
      what was going on on this particular day in question, by her own
      statement, according to this [exhibit], and she signed it.

       Defense counsel also opposed admitting the portion of the statement

where Witt said she gave Michelle Hinkle "a little bit of meth" for helping with

cooking and housekeeping that day. This conflicted with Hinkle's testimony that

Witt paid her with the copper pipe. The court concluded, "I'm going to leave that

part in. I believe it does go to this whole transaction and the time frame." But the

court ordered the redaction of the two final paragraphs of the statement, as the

parties agreed. And the court made a final statement about its balancing:

              I just think it's—the relevance is not outweighed by unfair
       prejudice. It's a situation where this is relevant material in the
       statement and the rule talks about only matters that are unfairly
       prejudicial. And I recognize there's always some prejudice when
       you engage in criminal conduct, but this was part of the actual
       transaction by the defendant's own statements to the officer.

       Citing United States v. Carrasco,9 the State argues that the circumstances

of the transaction "all reflect upon [Witt's] guilty knowledge."   In Carrasco, the


       9257F.3d1045(9thCir. 2001).
No. 72363-4-1 / 7



court ruled that the defendant's possession of drug paraphernalia was relevant to

prove the charged crime of knowing possession of a firearm.10 But as Witt notes

in a reply brief, the court's holding in Carrasco and similar cases depends on "the

nexus between the drug trafficking evidence and the firearm and ammunition"

because "'[f]irearms are known tools of the trade of narcotics dealing.'"11 We

agree with Witt that any nexus between narcotics and trafficking in stolen

property is more attenuated than the nexus between drug trafficking evidence

and firearms.   The State's analogy to Carrasco and related cases to prove

knowledge is imperfect at best.

       But according to Witt's own sworn statement, the exchange of dubiously

sourced copper pipe for drugs "provide[s] the immediate context for events close

in both time and place to the charged crime."12 We will uphold a trial court's

admission of evidence under ER 404(b) if the record supports one of its cited

bases.13 Here, the record shows that the trial court conducted a proper inquiry

before admitting the evidence.     The court found by a preponderance of the

evidence that the transaction occurred, which was not unreasonable given that

Witt made the statement.     The court identified res gestae as the purpose for


       10 Carrasco, 257 F.3d at 1049.
       11 Carrasco, 257 F.3d at 1048-49 (quoting United States v. Butcher. 926
F.2d 811, 816 (9th Cir. 1991)); see also United States v. Crespo de Llano, 838
F.2d 1006, 1018 (9th Cir. 1987) (firearms can be relevant to show involvement in
narcotics trade); United States v. Simon, 767 F.2d 524, 527 (8th Cir. 1985)
(firearms are known "tools of the trade" of narcotics dealing because of dangers
inherent in that activity).
      12 Lillard, 122 Wn. App. at 432.
      13 State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995).
No. 72363-4-1 / 8




which the evidence was offered, determined that the evidence was relevant to

prove an element of the crime of trafficking in stolen property, and weighed the

probative value of the evidence against its prejudicial effect. The court redacted

portions of Witt's statement that referred to unrelated and possibly unfairly

prejudicial possession and sale of drugs. The court conducted its balancing on

the record.


         "The decision to admit evidence of other crimes or misconduct lies within

the sound discretion of the trial court and will not be disturbed on appeal absent

an abuse of discretion."14 The trial court did not abuse its discretion in finding the

contested evidence relevant or in admitting it under the res gestae exception.

LFOs


         Witt also challenges the trial court's imposition of LFOs of $500 for court-

appointed attorney fees and $200 for court costs.15 She argues that the court

must consider her ability to pay before imposing these nonmandatory fees. We

agree.


         "Whenever a person is convicted in superior court, the court may order

the payment of a legal financial obligation as part of the sentence."16 While the

$500 victim assessment fee and $100 DNA collection fee are statutorily

       14 State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997) (footnote
omitted); see also State v. Lane, 125 Wn.2d 825, 835, 889 P.2d 929 (1995).
         15 Witt does not challenge the statutorily mandated victim penalty
assessment and DNA collection fees, for which courts are not required to
consider a defendant's ability to pay. RCW 7.68.035(1 )(a); RCW 43.43.7541;
State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013). Nor does she
challenge the $72 in restitution imposed under RCW 9.94A.753.
       16RCW9.94A.760(1).


                                          -8-
No. 72363-4-1 / 9




mandated, the imposition of court costs and appointed attorney fees is

discretionary.17 A trial court may order a convicted defendant to pay costs for

appointed counsel,18 and RCW 10.01.160(2) allows the recoupment of court

costs "specially incurred by the state in prosecuting the defendant." A defendant

may petition the court at any time for remission or modification of the payments

on the basis of manifest hardship,19 but "[b]ecause this determination is clearly

somewhat 'speculative,' the time to examine a defendant's ability to pay is when

the government seeks to collect the obligation."20        Before imposing any

discretionary costs, however, the court "shall take account of the financial

resources of the defendant and the nature of the burden that payment of costs

will impose."21

       Here, because nothing in the record reflects that the State has attempted

to collect LFOs from Witt, the issue of whether the LFOs are justified is not yet

ripe for review. We note also that Witt challenges the LFOs for the first time on

appeal after requesting in her presentence report that the court impose $200 in

court costs and attorney fees "as the court deems proper." Her appeal of the

LFOs may therefore be barred either by RAP 2.5(a) or the invited error




       17 RCW 7.68.035(1 )(a); RCW 43.43.7541; RCW 9.94A.760.
       18 State v. Barklind, 87 Wn.2d 814, 817-19, 557 P.2d 314 (1976); State v.
Smjts, 152 Wn. App. 514, 520-21, 216 P.3d 1097 (2009).
       19 RCW 10.01.160(4); State v. Baldwin, 63 Wn. App. 303, 310-11, 818
P.2d 1116, 837 P.2d 646 (1991).
       20 Smite, 152 Wn. App. at 523-24 (citing Baldwin, 63 Wn. App. at 310-11).
       21 RCW 10.01.160(3).
No. 72363-4-1/10




doctrine.22   As a threshold matter, however, we must decide if the trial court

complied with its statutory duty under RCW 10.01.160(3) when it imposed the

LFOs.


        Witt's judgment and sentence contains boilerplate language, stating, "The

court has considered the total amount owing, the defendant's past, present, and

future ability to pay legal financial obligations, including the defendant's financial

resources and the likelihood that the defendant's status will change." The form

then allows the court to check a box to indicate its findings, either that "[t]he

defendant has the ability or likely future ability to pay the legal financial

obligations imposed herein" or "[t]he following extraordinary circumstances exist

that make restitution inappropriate."23

        Here, the trial court did not check either box to indicate its findings. And

because there was no discussion at sentencing of Witt's ability to pay, we cannot

look to the court's oral ruling to supplement its written findings.24 We presume

that the court considered Witt's presentence report, in which she either requested

costs or left them to the court's discretion, arguably implying an ability to pay.

But this presumption, without more, is not sufficient to show that the court




      22 Under the invited error doctrine, a party may not set up an error at trial
and then complain of it on appeal. In re Pers. Restraint of Thompson, 141 Wn.2d
712,723, 10P.3d380(2000).
      23 The court may also find that "[t]he defendant has the present means to
pay costs of incarceration," which is not at issue here.
      24 See State v. Hinds, 85 Wn. App. 474, 486, 936 P.2d 1135 (1997) (an
oral decision may supplement written findings to the extent the oral decision does
not conflict with the written findings).


                                           -10-
No. 72363-4-1 /11




complied with its statutory duty to consider Witt's financial resources and whether

she is or will be able to pay the imposed LFOs.

       In a statement of additional authorities, the State directs our attention to

State v. Duncan,25 in which Division Three of this court declined to address for

the first time on appeal a challenge to a trial court's LFO order. A decision on

this issue is also forthcoming from our Supreme Court in State v. Blazina,26 for

which the court heard oral argument earlier this year. But Duncan and Blazina

involve a different question than the one presented here. Those cases ask if a

defendant may challenge for the first time on appeal a trial court's LFO order that

is allegedly based on unsupported findings.27 Witt's case, by contrast, does not

involve unsupported findings. The trial court made no findings. The record does

not show that the court considered Witt's ability to pay. Therefore, we conclude

that the trial court exceeded its statutory authority by imposing LFOs without

"tak[ing] account of [Witt's] financial resources . . . and the nature of the burden

that payment of costs will impose," as RCW 10.01.160(3) requires.28 We vacate

the order imposing LFOs and remand for a resentencing hearing on this issue.




       25 180 Wn. App. 245, 254-55, 327 P.3d 699 (2014), petition for review
filed, No. 90188-1 (Wash. Apr. 30, 2014).
        26 174 Wn. App. 906, 301 P.3d 492, review granted. 178 Wn.2d 1010
(2013).
        27 Duncan. 180 Wn. App. at 249; Blazina. 174 Wn. App. at 911.
        28 See State v. Moen. 129 Wn.2d 535, 546-48, 919 P.2d 69 (1996)
(reversing an untimely restitution order as exceeding the trial court's statutory
authority).


                                        -11-
No. 72363-4-1/12




Notification of Loss of Firearm Rights

       The State concedes that the trial court did not notify Witt upon conviction

"orally and in writing" that she may not possess a firearm, as required by RCW

9.41.047(1 )(a). While the judgment and sentence contained this written notice,

the court did not orally advise Witt of her loss of firearm rights.

       RCW 9.41.047(1)(a) "'requires the convicting court to provide oral and

written notice.   The statute is unequivocal in its mandate.'"29 We accept the

State's concession and remand to the trial court for a resentencing hearing

consistent with the requirements of RCW 9.41.047(1 )(a).

Statement of Additional Grounds


       In a statement of additional grounds, Witt contends that she was "not

given adequate counfsel] for [her] defense." We review ineffective assistance of

counsel claims de novo.30 To establish such a claim, Witt must show (1) defense

counsel's conduct was deficient, i.e., that it fell below an objective standard of

reasonableness and (2) that the deficient performance prejudiced her: that there

is a reasonable possibility that but for counsel's deficient performance, the

outcome of her trial would have been different.31           Our scrutiny of defense

counsel's performance is highly deferential, and we employ a strong presumption




       29 State v. Breitung, 173 Wn.2d 393, 403, 267 P.3d 1012 (2011) (quoting
State v. Minor. 162 Wn.2d 796, 803, 174 P.3d 1162 (2008)).
       30 In re Pers. Restraint of Brett. 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
       31 State v. Reichenbach. 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing
State v. Thomas. 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).


                                          •12-
No. 72363-4-1/13




of reasonableness.32 "To rebut this presumption, the defendant bears the burden

of establishing the absence of any 'conceivable legitimate tactic explaining

counsel's performance.'"33     Failure on either prong of the test defeats an

ineffective assistance of counsel claim.34

      Witt alleges first that she received ineffective assistance because her

attorney called only two witnesses from a list she gave him and did not call "the

most important witness."      But "'[t]he decision whether to call a witness is

ordinarily a matter of legitimate trial tactics and will not support a claim of

ineffective assistance of counsel.'"35   The record here does not demonstrate

otherwise.   Defense counsel may have had good reason not to call a witness

whose statement conflicted with Witt's own sworn statement to police.        This

argument fails.

       Witt also contends that defense counsel "refused to ask[ ] questions that I

wrote down as the trial went on." Because matters of trial strategy or tactics do

not establish deficient performance and this claim relies largely upon facts or

evidence outside this record, we reject this argument.

       Next, Witt asserts that defense counsel failed to impeach Michelle Hinkle.

But the trial record shows that during cross-examination, counsel confronted

       32 Strickland v. Washington. 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 335-36, 899 P.2d 1251
(1995).
       33 State v. Grier. 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting
Reichenbach. 153 Wn.2d at 130).
       34 Strickland. 466 U.S. at 697.
       35 State v. Statler. 160 Wn. App. 622, 636, 248 P.3d 165 (2011) (quoting
State v. Kolesnik. 146 Wn. App. 790, 812, 192 P.3d 937 (2008)).


                                         -13-
No. 72363-4-1 /14




Hinkle with several past crimes of dishonesty.        Counsel also cross-examined

each of the State's other witnesses.


         The law affords trial counsel wide latitude in the choice of tactics.36 Witt

does not demonstrate that in choosing tactics, defense counsel did not "do

everything in his power to tell her side of the story." Because she establishes

neither deficient performance nor prejudice, Witt's claim of ineffective assistance

fails.


                                      Conclusion


          Because the trial court did not abuse its discretion in admitting ER 404(b)

evidence and Witt's claims in her statement of additional grounds have no merit,

we affirm her conviction for trafficking in stolen property in the second degree.

But because the trial court did not consider Witt's ability to pay LFOs and did not

orally advise her of the loss of her right to possess a firearm, we vacate the order

imposing LFOs and remand to the trial court for a resentencing hearing on these

issues.




                                                       U^/t J.
WE CONCUR:




                                                                       J.


          36 In re Pers. Restraint of Stenson. 142 Wn.2d 710, 736, 16 P.3d 1 (2001).


                                          -14-
