                                                                          FILED 

                                                                       JULY 21, 2015 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                         )        No. 32996-8-111
                                             )
                     Respondent,             )
                                             )
               v.                            )        UNPUBLISHED OPINION
                                             )
ARTHUR DALE COOPER,                          )
                                             )
                     Appellant.              )

          LAWRENCE-BERREY, 1.   - A jury convicted Arthur Cooper of second degree

burglary, second degree vehicle prowling, and second degree possession of stolen

property. On appeal, he contends that the prosecutor, in closing arguments, improperly

shifted the burden ofproof and commented on his right not to testifY at trial. Mr. Cooper

also contends that the trial court prohibited him from presenting a meaningful defense by

excluding his hearsay statements made to the victim. Mr. Cooper further contends that he

did not receive effective assistance of counseL We disagree with his contentions and

affirm.
No. 32996-8-III
State v. Cooper


                                            FACTS

          John Gore and Veronica Dawkins shared a home at 4309 Tacoma Avenue South in

Tacoma. In the early morning hours of March 28, 2013, Ms. Dawkins woke up and

noticed someone in Mr. Gore's pickup truck. The truck was parked behind their house in

an area surrounded by a chain-link fence.

          Ms. Dawkins saw a person leaning into the truck and rummaging through it. The

internal dome light of the truck was on, highlighting the person inside. Ms. Dawkins

immediately woke up Mr. Gore and told him what she had seen. Mr. Gore jumped out of

bed, taking time only to put on a pair of pants. He headed downstairs and out to the

backyard. Ms. Dawkins saw Mr. Gore run out the back door and the man in the truck

jump out. The person fled into the alley with Mr. Gore right behind. Ms. Dawkins had

not seen this man before.

          When Mr. Gore and the man were out of sight, Ms. Dawkins noticed a second

person coming out of the garage of the home. The man was moving fast. Ms. Dawkins

did not know this man either. At that point, Ms. Dawkins ran to the telephone and called

police.

          According to Mr. Gore, after Ms. Dawkins woke him, he headed downstairs to the

backyard. He looked through the kitchen window on the way out and saw a person



                                             2
No. 32996~8~III
State v. Cooper


rummaging through his truck. The man's body was about one~half to two-thirds inside.

To Mr. Gore, it appeared that the man was moving things inside the truck. Mr. Gore saw

that the dome light was on, illuminating the man. At trial, Mr. Gore identified the man as

Mr. Cooper.

       As soon as Mr. Gore got outside, Mr. Cooper jumped out of the truck, tore down

the gate to the home, and ran down the alley. Mr. Gore yelled, '" Stop thief.'" 2 Report

of Proceedings (RP) at 202. Despite being barefoot, Mr. Gore chased Mr. Cooper many

blocks through the neighborhood over several fences and through backyards. Mr. Gore

never lost sight of Mr. Cooper. Throughout the incident, Mr. Gore told Mr. Cooper

repeatedly that Mr. Cooper was going to jaiL According to Mr. Gore, Mr. Cooper said he

was sorry for breaking into Mr. Gore's truck.

      At one point, Mr. Gore chased Mr. Cooper through the front yard of a house.

Walter Larson, a private security guard, was waiting outside the house after responding to

a triggered alarm. Mr. Larson heard someone yell for help and to call the police. Shortly

thereafter, Mr. Larson heard what sounded like a fence rattling. He turned and saw two

men round the comer of the house. One man was chasing another, yelling to call the

police. Mr. Larson put a spotlight on the first man, who stopped for a second. The first




                                            3

No. 32996-8-III
State v. Cooper


man then brushed past Mr. Larson and kept running. Mr. Larson later identified the first

man as Mr. Cooper.

      Mr. Larson flagged down Tacoma Police Officer Jeffrey Maahs and pointed him in

the direction of Mr. Cooper and Mr. Gore. Officer Maahs found Mr. Cooper and Mr.

Gore running through the streets. Officer Maahs activated his lights, and the two men

stopped and sat on the steps of a nearby home. Mr. Cooper was out of breath and

appeared tired and sweaty.

      Officer Maahs arrested Mr. Cooper. On the way to the patrol car, Mr. Cooper told

Officer Maahs, "'I was stupid and I made a mistake.'" 2 RP at 252. Officer Maahs

brought Mr. Cooper to Pierce County jail for booking.

      Tacoma Police Officer Brian Hudspeth also responded. When he arrived, Officer

Maahs was in the process of detaining Mr. Cooper, who was lying against some steps and

fully out of breath. Mr. Gore was also out of breath and sweating. Officer Hudspeth

gathered information from Mr. Gore, and the pair then walked back to the Gore residence.

While there, Officer Hudspeth gathered information from Ms. Dawkins. He also looked

through the kitchen window mentioned by Mr. Gore and noted that he could see the truck

from the window.




                                           4

No. 32996-8-III
State v. Cooper


       Officer Hudspeth and Mr. Gore examined the truck. Officer Hudspeth noticed that

both doors were ajar. Mr. Gore usually did not lock his truck doors. However, he knew

the doors to the truck were shut after he parked it and the fence gates were closed. When

Officer Hudspeth fully opened the door to the truck, he saw a large pile of objects on the

front seat. Mr. Gore explained that the items were previously in the backseat. Items in

the truck included several GPS I units, some photography equipment, a tripod, and

miscellaneous electronics. Mr. Gore also noticed that his glove box had been ritled

through .

      . Officer Hudspeth described the placement of the items in the front seat as

"staging." 3 RP at 278. Based on his years of responding to burglaries, Officer Hudspeth

explained at trial that "staging" is when a perpetrator goes through the house or car,

gathers all the items he wants to take, and puts those items in a pile. Once the perpetrator

is ready to leave, he can quickly pick up the pile of items on his way out.

       Mr. Gore recalled that the door to his garage was latched earlier in the day.

However, after returning to his house with Officer Hudspeth, the door appeared

unlatched. Officer Hudspeth saw that the walk-in door to the garage was fully open.




       I   Global positioning system.

                                             5

No. 32996-8-111
State v. Cooper


Officer Hudspeth and Mr. Gore walked through the garage and determined that nothing

appeared to be missing. The same was true for the truck.

       Meanwhile, Officer Maahs remained at the jail with Mr. Cooper. During the

booking process, corrections officers searched Mr. Cooper's wallet. Inside the wallet,

they found a debit card bearing the name of Amanda Dillard. Officer Maahs collected the

card and booked it into evidence.

       Officer Maahs contacted Ms. Dillard and her husband, Jason Dillard, about the

debit card. Ms. Dillard's card was stolen when someone broke into Mr. Dillard's truck

less than two months earlier and took Mr. Dillard's wallet. The debit card was inside the

wallet. The Dillards' truck was located in the alley behind the Dillard house. The Dillard

house and the Gore house are about a block and a half apart.

      The Dillards discovered that someone used the card at a business located within a

three mile radius of their home after the card was stolen. Neither of the Dillards gave Mr.

Cooper or anyone else permission to possess Ms. Dillard's debit card. The Dillards did

not know Mr. Cooper. Mr. Cooper did not contact the Dillards to return the stolen card.

      Mr. Cooper was charged by amended information with residential burglary and

second degree vehicle prowling for breaking into Mr. Gore's fenced yard and truck, and

second degree possession of stolen property for possessing Ms. Dillard's debit card. The


                                            6

No. 32996-8-III
State v. Cooper


charges were tried to a jury. At the conclusion of the State's case, Mr. Cooper moved to

dismiss all counts for insufficient evidence. The trial court granted his motion as to the

charge of residential burglary but allowed the State to submit the count to the jury on the

lesser charge of second degree burglary. The court denied Mr. Cooper's motion to

dismiss the remaining counts.

       Ajury found Mr. Cooper guilty of second degree burglary, second degree vehicle

prowling, and second degree possession of stolen property. Mr. Cooper's extensive prior

criminal history resulted in an offender score of9+. The court sentenced Mr. Cooper to

55 months for the burglary and 25 months for the possession of stolen property, to run

concurrently.

      Mr. Cooper appeals. He contends that a new trial is warranted because of

prosecutorial misconduct during closing arguments and ineffective assistance of counsel.

He also maintains that the trial court precluded him from presenting a meaningful defense

by excluding certain hearsay statements.

                                       ANALYSIS

A.     Whether the prosecutor's comments improperly shifted the burden ofproof

      To establish prosecutorial misconduct, a defendant must show that the prosecutor's

statements were improper and, as a result, prejudicial. State v. Dhaliwal, 150 Wn.2d 559,



                                             7

No. 32996-8-III
State v. Cooper


578, 79 P.3d 432 (2003). For improper statements that were followed by a proper

objection, a prosecutor's statements are prejudicial if the statement had a substantial

likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d

653 (2012).

       However, "[i]fthe defendant did not object at trial, the defendant 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." ld. at 760­

61. "Under this heightened standard, the defendant must show that (1) 'no curative

instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct

resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict. '" Id.

at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 PJd 43 (2011)).

"Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant

or ill intentioned and more on whether the resulting prejudice could have been cured." ld.

at 762. A proper jury instruction generally cannot cure a statement that has an                  I
                                                                                                 t


inflammatory effect. ld. at 763. "Any allegedly improper statements should be viewed

within the context of the prosecutor's entire argument, the issues in the case, the evidence

discussed in the argument, and the jury instructions." Dhaliwal, 150 Wn.2d at 578.




                                               8

                                                                                                 !
                                                                                                 \
No. 32996-8-111
State v. Cooper


       In closing arguments, prosecutors are allowed latitude to argue the facts in

evidence and reasonable inferences from the facts. Id. at 577. However, they are not

permitted to make prejudicial statements that are not sustained by the record. [d. Nor

maya prosecutor's argument shift the burden of proof to the defendant. Thorgerson, 172

Wn.2d at 453. "A prosecutor generally cannot comment on the defendant's failure to

present evidence because the defendant has no duty to present evidence." [d.

       "Remarks of the prosecutor, even if they are improper, are not grounds for reversal

if they were invited or provoked by defense counsel and are in reply to his or her acts and

statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative

instruction would be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747

(1994). A prosecutor can argue that the evidence does not support the defense theory; a

prosecutor is entitled to make a fair response to defense arguments. [d. at 87.

       The mere mention that a defendant is lacking evidence does not constitute

prosecutorial misconduct or shift the burden of proof to the defense. State v. Jackson,

150 Wn. App. 877, 885-86, 209 P.3d 553 (2009). A prosecutor is entitled to point out a

lack of evidentiary support for a defendant's theory of the case. State v. Killingsworth,

166 Wn. App. 283, 291-92, 269 P.3d 1064 (2012).




                                              9

No. 32996-8-111
State v. Cooper


       Mr. Cooper contends that the prosecutor urged the jury to presume Mr. Cooper

knew the card was stolen because he possessed the card. Thus, according to Mr. Cooper,

the prosecutor was relieved of her constitutionally mandated burden of proving the

element of knowledge beyond a reasonable doubt. Mr. Cooper did not object to the

challenged statement at trial.

       The prosecutor's challenged statement is set forth below:

               One of the other elements for possession of stole[n] property is that
       the card was being withheld from the true owner, from Mrs. Dillard, and it
       definitely was being withheld from her. She didn't know the defendant.
       Sergeant Dillard doesn't know the defendant. Neither of them gave the
       defendant permission to have the debit card. Neither of them even knew
       that the defendant had the debit card, and the defendant had it in a wallet, in
       a pocket, on his person, so there's no way that if the Dillards had walked by
       him on the street that they would have known he had it. He was definitely
       withholding it from the Dillards,
               And the incident occurred in the state of Washington, specifically,
       again, in the City of Tacoma.
               So the only issue in this particular charge is whether the defendant
       knew that the card was stolen. Again, we're now looking at circumstantial
       evidence. We're looking at the fact that the debit card was in the name of
       Amanda Dillard, which was clearly on the card, and you will see that when
       you take it back into the jury room, that the defendant is not Amanda
       Dillard, that the defendant is not known by either of the Dillards. One
       could conclude that he doesn't know them.
               And when you look at the "knowledge" instruction, which is
       Instruction No. 18, it basically says that the individual knew or reasonably
       could have known that the card was stolen. And you reasonably would
       know that the card was stolen because you're not entitled to it. And keep in
       mind that the Dillards live basically about a block away from where Mr.


                                             10 





                                                                                         I
No. 32996-8-III
State v. Cooper


       Gore lives .... Yes, we're talking about two different dates, but they're
       pretty close to each other.
               These are the facts that the State would ask you to consider.

3 RP at 362-64.

       Defense counsel during closing arguments noted that there was no evidence

whatsoever that Mr. Cooper had anything to do with the theft of the card and also no

evidence that Mr. Cooper would have known or did know it was stolen. Defense counsel

said that people find things all the time. Counsel then gave examples of people who lost

items, reporting that sometimes the items were turned in and sometimes not.

       In rebuttal the prosecutor responded to defense counsel's argument that people

find things all the time and hopefully tum them in. Her response was that there was no

evidence that Mr. Cooper turned the card in. The prosecutor stated, "There is no way that

either [of] the Dillards would have known that the defendant had this card, and there is no

reason for him to have kept the card except for the fact that it was stolen. There's no

evidence that he turned it in. . .. It is reasonable to conclude that the defendant knew or

should have known that it was stolen." 3 RP at 368.

       When taken in context, the prosecutor in closing argument did not attempt to

relieve the State of proving the element of knowledge. Instead, the prosecutor identified

the evidence that the jury could use to reasonably conclude that Mr. Cooper had


                                             11 

No. 32996-8-III
State v. Cooper


knowledge. In her closing statement, the prosecutor addressed the knowledge element of

the charged crime, recited the jury instruction for the knowledge element, and provided

circumstantial evidence that would support a finding of knowledge, including the fact that

Mr. Cooper was not entitled to have the card. This was not burden shifting but was

identifYing circumstantial evidence in the record to support the prosecution's theory.

       Burden shifting did not occur in the prosecutor's rebuttal statements either. The

prosecutor simply responded to the defense argument that the stolen property could be in

a person's possession because they found it. The prosecutor noted there was no evidence

that Mr. Cooper found the card, and that fact can be used to support a finding of

knowledge. The prosecutor did not tell the jury to presume knowledge simply because

Mr. Cooper possessed the stolen debit card.

       The prosecutor set forth the jury instructions and circumstantial evidence that the

jury could use to find that Mr. Cooper had knowledge. "Although bare possession of

recently stolen property will not support the assumption that a person knew the property

was stolen, that fact plus slight corroborative evidence of other inculpatory circumstances

tending to show guilt will support a conviction." State v. Ford, 33 Wn. App. 788, 790,

658 P.2d 36 (1983). "Knowledge may not be presumed because a reasonable person

would have knowledge under similar circumstances, but such knowledge may be


                                              12 

No. 32996-8-111
State v. Cooper


inferred." ld. Here, the fact that Mr. Cooper had the stolen debit card with Ms. Dillard's

name on it yet made no attempt to return it was circumstantial evidence to support an

inference that he knew the card was stolen. The remarks of the prosecutor were not

improper.

B. 	   Whether the prosecutor impermissibly commented on Mr. Cooper's right not to
       testifY

       Mr. Cooper contends that the prosecutor improperly commented on his right not to

testifY. Mr. Cooper challenges the prosecutor's remark in rebuttal that Mr. Cooper did

not have a legitimate reason to be in Mr. Gore's backyard. Mr. Cooper contends that

because he was the only person who could testifY to why he was in the backyard, the

prosecutor's statement drew attention to the fact that Mr. Cooper did not testifY. Mr.

Cooper did not object at trial.

       The prosecutor's statement was not improper but instead was a response to Mr.

Cooper's theory of the case presented in defense counsel's closing argument. Defense

counsel argued that there were legitimate reasons why a person may be out and about in

the evening, pointing out that a person on a bicycle was seen riding on the night of the

incident. Defense counsel argued that it was just as reasonable to believe that Mr. Cooper

came across the truck in the middle of the night and observed the odd circumstances.

Counsel argued that while some people keep going, others become involved and look into

                                            13
                                                                                             ,¥t




                                                                                             I
No. 32996-8-III
State v. Cooper


the circumstances, and for instance, call 911 or pound on doors. He suggested that this

could be Mr. Cooper's situation. Counsel added, "There is no doubt he is in the wrong

place at the wrong time, but I would submit to you that to leap to the conclusion that he's

there with criminal intent, criminal knowledge, is more than just reasonably inferring that

he's there with the intent to commit a crime." 3 RP at 378.

       In rebuttal, the prosecutor stated,

             There is no testimony that has been presented in this case that you
      can conclude that the defendant had any legitimate reason to be in Mr.
      Gore's fully fenced-in back yard in the early morning hours of March 28th,
      2013. What we have is more than sufficient evidence to show that the
      reason the defendant was there was for an intent to commit a crime, and that
      crime was theft.
             We know the property had been moved from the back to the front
      seat. We know the defendant was found rummaging in that pickup truck.
      There was no reason for him to have done any of those if he was there for
      some legitimate reason, but the State contends that, based upon all the
      evidence in this case, he wasn't there for any legitimate reason.

3 RP at 386-87.

      The prosecutor's rebuttal argument-that no testimony was presented in the case

to conclude that Mr. Cooper had a legitimate reason for being in the yard-was in direct

response to Mr. Cooper's argument that he simply wanted to help and was in the wrong

place at the wrong time. The prosecutor's rebuttal statement was not improper.




                                             14 

No. 32996-8-III
State v. Cooper


C. 	    Whether excluding hearsay precluded Mr. Cooper from presenting a meaningful
        defense

        A trial court's decision regarding the admission of evidence is reviewed for an

abuse of discretion. State v. Thomas, 150 Wn.2d 821,856,83 P.3d 970 (2004),

abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004). "[T]he trial court's decision will be reversed only if no

reasonable person would have decided the matter as the trial court did." Id. "Proper

objection must be made at trial to perceived errors in admitting or excluding evidence and

failure to do so precludes raising the issue on appeal." Id.

        Mr. Cooper contends that the trial court infringed on his right to present a defense

by excluding Mr. Gore from testifying about two statements made by Mr. Cooper to Mr.

Gore. The trial court excluded these statements as hearsay. Mr. Cooper sought to admit

his two "admissions" to Mr. Gore-that he did not take anything and that the truck was

open.

        The Sixth Amendment provides, in part, "In all criminal prosecutions, the accused

shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor."

U.S. CONST. amend. VI. The Sixth Amendment right of compulsory process is

applicable to the states through the Fourteenth Amendment. Thomas, 150 Wn.2d at 857.

Due process provides a defendant the right to offer witnesses, to present a defense, and to

                                              15 

No. 32996-8-III
State v. Cooper


present the defendant's and prosecution's versions of the facts to the jury for

determination of the truth. Id. The right to compulsory process is not absolute. Id.

       Hearsay is not admissible at trial except as provided by rule or statute. ER 802.

'" Hearsay' is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 80I(c).

       In Thomas, the defendant contended that the trial court should have allowed him to

cross-examine a police officer about a witness's out-of-court identification of a man,

without having to call the witness. 150 Wn.2d at 859. The trial court excluded the

statement unless the witness testified because it considered the statement hearsay. Id.

The appeals court upheld the trial court's ruling, finding that Mr. Thomas did not object

and could have called the witness to testify to what she saw, but declined to do so. Id.

Thus, Mr. Thomas waived a hearsay objection and the ruling did not infringe on his right

to present evidence. Id.

       Here, as in Thomas, the trial court did not infringe on Mr. Cooper's right to present

evidence to support a defense. Mr. Cooper sought to present his own statements through

a witness. The court correctly determined that these statements were hearsay and

excluded the testimony. Mr. Cooper was available to testify to his statements but instead

exercised his right not to testify at trial. Thus, the consequence of exercising this right



                                              16 

No. 32996-8-111
State v. Cooper


was that his statements to Mr. Gore could not be presented at trial to support his defense,

absent an exception to the hearsay rule. 2

       Mr. Cooper contends on appeal that the statements should have been allowed

under ER 803(a)(3) to show his state of mind. However, he did not pursue this exception

at trial. He waived the right to raise the issue on appeal.

D. 	      Whether Mr. Cooper's counsel was ineffective

       To demonstrate ineffective assistance of counsel, a defendant must show

(1) defense counsel's representation was deficient, i.e., it fell below an objective standard

of reasonableness based on consideration of all the circumstances, and (2) defense

counsel's deficient representation prejudiced that defendant, Le., there is a reasonable

probability that except for counsel's unprofessional errors, the result of the proceeding

would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

(1995).

       In a claim of ineffective assistance of counsel based on a failure to challenge the

admission of evidence, a defendant must show (1) an absence of legitimate strategic or

tactical reasons supporting the challenged conduct, (2) that an objection to the evidence


       2 An admission by a party opponent is not hearsay if the statement is offered
against the party. ER 801(d)(2). This rule does not apply to Mr. Cooper's statements
because he offered his statements to support his defense.

                                              17 

No. 32996-8·III
State v. Cooper


would have likely been sustained, and (3) the result of the trial would have been different

had the evidence not been admitted. State v. Sexsmith, 138 Wn. App. 497, 509, 157 P.3d

901 (2007).

       Mr. Cooper's counsel was not deficient for failing to object during closing

argument. The prosecutor's statements were proper so there was no need for defense

counsel to object.

       As for Mr. Cooper's out-of-court statements, even if we were to conclude that

counsel was deficient for failing to argue an ER 803(a)(3) hearsay exception, the result of

the trial would not have been different with the admission of the evidence. The

admission of the two statements that Mr. Cooper did not take anything and that the truck

was open was cumulative evidence. Mr. Gore testified that nothing was missing from the

truck and that he normally leaves his truck unlocked.

       Also, Mr. Cooper's out-of·court statements did not negate the element of intent,

which was the primary challenged element for the vehicle prowling and burglary charges.

For vehicle prowling, a reasonable juror could still infer that Mr. Cooper had the intent to

steal when he was found rummaging through the truck, even though the truck was

unlocked and he did not manage to take anything. Similarly for second degree burglary, a

reasonable person could conclude that Mr. Cooper unlawfully entered Mr. Gore's fenced



                                             18 

No. 32996-8-III
State v. Cooper


backyard without permission, regardless if the truck was unlocked and Mr. Cooper did

not take items from the truck. The admissions of the two out-of-court statements would

not have produced a different result. Mr. Cooper's ineffective assistance of counsel

challenge fails.

                   STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds, Mr. Cooper contends that his counsel was

ineffective for failing to challenge Mr. Gore's and Ms. Dawkins's testimonies that the

backyard was fully fenced. 3 Counsel was not defective for failing to further question

these witnesses on this issue. Rather, this decision not to ask such questions was likely

strategic. Both Mr. Gore and Ms. Dawkins testified that the yard was fenced. Had

defense counsel further inquired into this subject, the witnesses would have had a further

opportunity to repeat their testimony. Instead of challenging this evidence, defense

counsel's tactic was to focus the jury on the intent element for second degree burglary,

which was a harder element for the State to establish.




       3 The charge for second degree burglary required the jury to find in part that Mr.
Cooper remained unlawfully in a building other than a dwelling. The jury was instructed
that a building, in addition to its ordinary meaning, includes a fenced in area. "Fenced
area ... includes an area that is completely enclosed either by fencing alone or a
combination of fencing and other structures." Clerk's Papers at 67.

                                            19
                                                                                             I
No. 32996-8-II1
State v. Cooper


       Mr. Cooper also challenges the trial court's decision not to grant a drug offender

sentencing alternative (DOSA). Mr. Cooper contends that the basis of the court's refusal

to impose a DOSA sentence was improper. Here, the court refused to impose a DOSA

sentence because Mr. Cooper continued to believe in his own innocence.

       The DOSA program authorizes trial judges to sentence eligible, nonviolent

offenders to a reduced sentence, substance abuse treatment, and increased supervision in

an attempt to help the offender recover from addiction. State v. Grayson, 154 Wn.2d 333,

337-38, 111 P.3d 1183 (2005). Whether to give a DOSA is a decision left to the trial

judge's discretion. Id. at 335. The trial court's decision will not be disturbed on appeal

unless the court's decision is '" manifestly unreasonable or based on untenable grounds or

untenable reasons.'" State v. Dye, 178 Wn.2d 541,548,309 P.3d 1192 (2013) (quoting

In re Marriage o/Littlefield, 133 Wn.2d 39, 46-47,940 P.2d 1362 (1997)).

       Generally, the DOSA sentencing decision is not reviewable. Grayson, 154 Wn.2d

at 338 (citing RCW 9.94A.585(1)). However, an offender may always challenge the

procedure by which a sentence is imposed. Id. Although no defendant is entitled to an

exceptional sentence below the standard range, every defendant is entitled to ask the trial

court for such a sentence "and to have the alternative actually considered." Id. at 342.

When a trial court categorically refuses to consider a DOSA, or refuses to consider a


                                            20 

No. 32996-8-111
State v. Cooper


DOSA for a class of offenders, the trial court fails to exercise discretion and is subject to

reversal. Id.

       Here, the trial court considered imposing a DOSA sentence but determined that it

was not appropriate in Mr. Cooper's situation. While the court had not seen a DOSA

evaluation, the court noted that a DOSA was not appropriate because Mr. Cooper denied

committing the crimes.

       The efficacy of DOS A is largely dependent on a person's being truthful and

cooperative in his or her treatment. A defendant is entitled to require the State to prove

his or her guilt beyond a reasonable doubt. However, once a jury has made the

determination, a court may consider a defendant's continued protestation of innocence as

an indicator militating against a successful DOSA outcome. State v. Hender, 180 Wn.

App. 895,902,324 P.3d 780 (2014). We conclude that the trial court's decision was not

manifestly unreasonable.

           APPELLANT'S MOTION TO STAY CONSIDERATION AND TO FILE
                        SUPPLEMENTAL BRIEFING

       Mr. Cooper filed a motion to stay consideration of his case so to allow

supplemental briefing. He filed his motion the day prior to this panel's consideration of

his case. The basis of his motion is the Supreme Court's recent decision of State v.

Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).

                                             21
No. 32996-8-111
State v. Cooper


       There, two cases were discussed. In each, the trial court imposed LFOs (legal

financial obligations) without making an individual determination of the defendant's

ability to pay. The Blazina court held that RAP 2.5(a) generally gives appellate courts

discretion to refuse to review errors that were not raised to the trial court. Id. at 834-35.

The Blazina court determined that "[n ]ational and local cries for reform of the broken

LFO [legal financial obligations] systems demand that this court exercise its RAP 2.5(a)

discretion and reach the merits of this case." Id. at 835. The Blazina court ultimately

held, "[T]he sentencing judge must consider the defendant's individual financial

circumstances and make an individualized inquiry into the defendant's current and future

ability to pay[, and] the record must reflect this inquiry." Id. at 837-38.

       Here, Mr. Cooper did not raise the LFO issue before the trial court or in his
                                                                                                I
assignments of error on appeal. We, therefore, exercise our discretion under RAP 2.5(a)

and deny his request to file a supplemental brief contesting imposition of LFOs. By
                                                                                                I
                                                                                                1
                                                                                                ,
implication, we also deny his request to stay consideration of his case. Nevertheless, we
                                                                                                t
deem it most consistent with the policy announced in Blazina to authorize Mr. Cooper to

raise this issue before the trial court.

       We therefore affirm on all issues, but we remand to the trial court for the limited
                                                                                                I
purpose of complying with Blazina.



                                              22
No. 32996-8-II1
State v. Cooper


      A majority of the panel has detennined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





      Kors~




                                           23 

