                                                                       FILED
                                                                     1/13/2020
                                                                  Court of Appeals
                                                                      Division I
                                                                State of Washington
     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                     )      No. 79129-0-I

                     Respondent,         )
       v.                                )
                                         )      ORDER GRANTING MOTION
STEPHEN BARNETT PANKEY,                  )      FOR RECONSIDERATION,
                                         )      WITHDRAWING&
                    Appellant.           )      SUBSTITUTING OPINION


      Appellant filed a motion for reconsideration of the court’s December 16, 2019

opinion. The court has considered the motion and determined that reconsideration

should be granted, the opinion filed on December 16, 2019 should be withdrawn, and

an unpublished substitute per curiam opinion filed.

      Now, therefore, it is hereby

      ORDERED that appellant’s motion for reconsideration is granted. It is further

      ORDERED that the opinion of this court filed December 16, 2019 is withdrawn

and a unpublished substitute per curiam opinion be filed.




       L~Ji
No. 72533-5-1/2




Order Denying Reconsideration;
Withdrawing and Replacing Opinion 2
                                -
                                                                           FILED
                                                                         1/13/2020
                                                                    Court of Appeals
                                                                        Division I
                                                                  State of Washington



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                          DIVISION ONE
 STATE OF WASHINGTON                           )         No, 79129-0-I

                       Respondent,
             v,                                )
STEPHEN BARNETT PANKEY,                        )        UNPUBLISHED OPINION

                       Appellant.              )        FILED: January 13, 2020


          PER CURIAM   —   Stephen Pankey appeals the judgment and sentence entered

following his convictions for first degree unlawful possession of a firearm and second

degree malicious mischief. He contends, and the State concedes, that the malicious

mischief conviction is not supported by sufficient evidence, and that the DNA1 fee was

improperly imposed under ROW 43.43.7541 and State v. Ramirez,2 because he

previously gave a DNA sample that is on file with the Washington State Patrol crime lab.

We accept the State’s concessions of error.

       Pankey raises other issues in his statement of additional grounds for review

related to his conviction for unlawful possession of a firearm. RAP 10.10 permits a

criminal defendant to file a pro se statement of additional grounds for review.

“Reference to the record and citation to authorities are not necessary or required, but




      I   Deoxyribonucleic acid.
      2   191 Wn.2d 732, 426 P.3d 714 (2018).
 No. 79129-0-112

 the appellate court will not consider a defendant’s statement of additional grounds for

 review if it does not inform the court of the nature and occurrence of alleged errors.”3

       First, Pankey challenges the credibility of the evidence that he was seen throwing

 and kicking an item under a car where the handgun was recovered. But credibility

determinations are left to the trier of fact and are not subject to review.4

       Second, he questions what happened to a video cam and why it was not

presented to the jury, and he asserts ineffective assistance of counsel for failure to

pursue DNA analysis of the gun recovered by police, which had no fingerprints. To the

extent he claims his counsel was ineffective regarding failure to submit a video cam into

evidence and lack of DNA analysis, we decline to review these issues because Pankey

relies on facts not in the record on appeal.5

        We affirm his conviction for unlawful possession of a firearm, vacate his

conviction for second degree malicious mischief, and remand for the trial court to strike

the DNA fee.

                                                    FOR THE COURT:


                                                       \J



                                                      ‘—-T~-~r--~’

                                                                    ~1

       ~ RAP 10.10(c).
       ~ State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
       ~ See State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P,2d 1251 (1995) (A
claim of ineffective of assistance of counsel may be brought on direct appeal but “a
personal restraint petition is the appropriate means for having the reviewing court
consider matters outside the record.”).
                                                2
