                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                            June 13, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 48072-7-II

                               Respondent,                    UNPUBLISHED OPINION

        v.

 THOMAS LOMAX,

                               Appellant.

       BJORGEN, C.J. — Thomas Lomax appeals his conviction and sentencing conditions for

first degree burglary. He argues that the trial court erred by (1) improperly requiring him to wear

leg shackles, resulting in prejudicial error, and (2) preventing him from impeaching the State’s

witness, Mariah McCarty, with her prior juvenile adjudications, which (a) was an abuse of

discretion under ER 609(d), and (b) violated his constitutional right to confront witnesses.

Lomax also argues that (3) the State committed prosecutorial misconduct when it vouched for

McCarty by stating in closing argument that “she’s not making this up,” and (4) even if each

claimed error on its own would not result in a reversal of his conviction, the cumulative

prejudice resulted in a fundamentally unfair trial. Report of Proceedings (RP) at 428. Lomax

further contends that the following sentencing errors occurred: (5) the mandatory

deoxyribonucleic acid (DNA) fee of $100 violated his constitutional rights to (a) substantive due

process and (b) equal protection, (6) the sentencing court abused its discretion when it required

him to give a DNA sample, and (7) his judgment and sentence contained two scrivener’s errors,

one for the wrong date of the crime and the other for the wrong term of punishment. He also
No. 48072-7-II


objects to appellate costs and raises two additional arguments in his statement of additional

grounds (SAG).

          We hold that Lomax fails to demonstrate a prejudicial trial error warranting reversal of

his conviction. We also hold that except for the scrivener’s errors that need to be corrected, no

sentencing error occurred. Finally, under newly amended RAP 14.2, Lomax may challenge costs

on appeal before our commissioner if the State requests them. Accordingly, we affirm Lomax’s

conviction and sentence, but remand to the sentencing court to correct the scrivener’s errors in

the judgment and sentence.

                                               FACTS

                                     I. SEPTEMBER 20 INCIDENT

          Donna Grow lives in the Hoquiam Castle with her grandson, Chris Adamson. Hoquiam

Castle is a historic home with 20 rooms and 3 floors; Grow slept in the “Queen’s room,” located

on the second floor. RP at 143. In the early morning of September 20, 2013, Grow was

suddenly awakened by a stranger in the Queen’s room. The stranger told her to stay in bed.

Despite the stranger’s order, she got out of bed, which prompted the stranger to strike her several

times in the shoulder and face. Grow then activated an alarm, and the stranger fled Hoquiam

Castle.

          David Blundred and Shane Krohn, detectives with the Hoquiam Police Department,

investigated, discovering that the Queen’s room was in disarray and jewelry had been stolen.

Atop a dresser in the Queen’s room, they found a partly filled “Budweiser Light Straw-ber-Rita”

can. RP at 244-45. Neither Grow nor Adamson drank Straw-ber-Rita and that kind of alcohol

was not kept in Hoqiuam Castle.


                                                   2
No. 48072-7-II


       Later in the investigation, police received a tip that Lomax was the individual who

burgled Hoquiam Castle. The police interviewed Lomax, who denied any involvement with the

burglary. They also obtained a buccal DNA swab from Lomax and sent the Straw-ber-Rita can,

along with Lomax’s buccal swab, to the Washington State Patrol Crime Laboratory Division for

comparative DNA testing. Marion Clark, a forensic scientist with the lab, was able to develop a

DNA profile from saliva discovered on the portion of the can where a person would drink. It

was a match to Lomax’s DNA profile with an estimated probability of approximately 1 in 7.5

quadrillion of selecting an unrelated individual at random from the United States’ population.1

                                          II. PROCEDURE

       Lomax was charged with first degree burglary. At trial, the facts above were brought out

through the testimony of Grow, Adamson, Blundred, Krohn, and Clark. In addition, the

following pertinent events occurred at trial.

1.     Mariah McCarty

       McCarty, who was allegedly an accomplice to Lomax in the burglary, was a witness for

the State. Despite being given transactional immunity, the State was only able to elicit from her

that (1) she dropped off Lomax in front of Hoquiam Castle on some night in September 2013, (2)

she fell asleep for several hours, and (3) when Lomax returned, he had jewelry. When the State

attempted to gather more information from McCarty, she refused to testify, resulting in her being

deemed a hostile witness and later being held in contempt of court.




1
 The lab also tested a buccal swab from another suspect, Dwight Warden, as well as Grow and
Adamson. The DNA profile from the Straw-ber-Rita can did not match any of those individuals.

                                                3
No. 48072-7-II


       The day before McCarty was to testify, defense counsel moved the trial court to admit her

three prior juvenile adjudications for taking a motor vehicle without permission to impeach her

credibility. The trial court declined to make a ruling on the impeachment issue at that time,

stating, “I will take a look at that issue and the cases interpreting that issue and provide you with

a ruling.” RP at 278. During McCarty’s testimony the next day, defense counsel renewed his

motion to impeach her “on priors,” to which the court responded, “I’m not going to permit her to

be impeached with juvenile convictions.” RP at 385.

       Although Lomax’s defense counsel was not allowed to impeach McCarty with her prior

juvenile adjudications, he was able to elicit the following from her during cross-examination:

       [Defense Counsel]:      You don’t recall the day that you guys went to the Hoquiam
                               Castle, do you?
       [McCarty]:              No, sir.
       [Defense Counsel]:      Were you using drugs on that—on that day?
       [McCarty]:              Yes, sir.
       [Defense Counsel]:      What drugs were you using?
       [McCarty]:              Meth. Meth and heroin.
       ....
       [Defense Counsel]:      Okay. You don’t remember the day?
       [McCarty]:              No, sir.
       [Defense Counsel]:      And you were using drugs?
       [McCarty]:              Yes, sir.
       [Defense Counsel]:      And you, in fact, fell asleep?
       [McCarty]:              Yes, sir.

RP at 397-98.




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No. 48072-7-II


2.     Shackles

       After the State rested its case, the trial court required Lomax to wear leg shackles after

hearing from a correction’s officer that he might run away if given the chance. Defense counsel

objected to the use of shackles, stating:

                Apparently Mr. Lomax, security told me that he was going to be shackled
       while we're finishing this trial. My concern is, I think from the jury’s - proximity
       of the jury relationship to Mr. Lomax they can see under the table and see that his
       leg is shackled with chains. I’m going to ask that the Court not do that. I think that
       is going to represent a significant prejudice to him.

RP at 411. The court responded with the following ruling:

               All right. I was informed that Mr. Lomax had made statements to correction
       staff that given the opportunity to flee that he intended to do so and I felt that that
       was a sufficient security concern for Mr. Lomax to be shackled and I instructed the
       court administrator to tell the corrections officers that . . . I wanted Mr. Lomax to
       be shackled the remainder of the trial. I do not agree that . . . it’s openly visible to
       the jury. From where the jury is sitting there’s a panel on the table that blocks view
       of Mr. Lomax. The shackles are down around his ankles very - I can barely see
       them from here and I have a direct view of Mr. Lomax.
               If you are concerned about it you can have him sit on the other side of Mr.
       Ehrhardt where the jury clearly would not be able to see his feet. So if you’re
       concerned about the jury seeing the shackles have Mr. Lomax move to the left of
       Mr. Ehrhardt. But otherwise, I believe that there is a sufficient security concern for
       Mr. Lomax to be shackled for the remainder of this trial.

RP at 411-12. After defense counsel talked with his co-counsel about whether to move Lomax,

the defense stated that “he’s going to stay.” RP at 412.

3.     Closing Argument

       During its closing argument, the State addressed the trustworthiness of McCarty’s

testimony:

       She was put on the stand, didn't want to testify given immunity so she couldn’t be
       prosecuted and she still wouldn’t . . . tell you everything, but she did tell you
       enough. She did tell you enough. And she’s not making this up, because if she
       were, well, she could say, oh, yeah, that’s exactly the place.

                                                  5
No. 48072-7-II


RP at 427-28 (emphasis added).

4.     Verdict/Sentencing

       The jury found Lomax guilty of first degree burglary. At sentencing, the court imposed a

mandatory sentence of life without the possibility of release because Lomax met the definition of

a persistent offender. RCW 9.94A.570. In addition, the trial court imposed a mandatory $100

DNA fee, required Lomax to provide his DNA sample, and signed the judgment and sentence

with the date of the offense listed as “9/20/2014” and the maximum term for that offense as “25

years to life and/or a $50,000 fine.” Clerk’s Papers (CP) at 12-16.

       Lomax appeals.

                                           ANALYSIS

                                           I. SHACKLES

       Lomax argues that the trial court’s ordering of leg shackles toward the end of his trial was

a presumptively prejudicial error requiring reversal of his conviction. Although we agree that

the use of shackles was an abuse of discretion, Lomax fails to show prejudice, i.e. that the

shackling had a substantial or injurious effect or influence on the jury’s verdict. In the absence

of that showing, the use of shackles does not warrant reversal. See In re Davis, 152 Wn.2d 647,

694, 101 P.3d 1 (2004).




                                                 6
No. 48072-7-II


1.     Imposition of Shackles

       “‘We review the trial court’s decision to shackle a defendant under an abuse of discretion

standard.’” State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499 (2001) (quoting State v.

Breedlove, 79 Wn. App. 101, 113, 900 P.2d 586 (1995)). “‘Discretion is abused when the trial

court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or for

untenable reasons.’” Id. (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017

(1993)).

       A defendant is entitled to appear at trial free from shackles except in extraordinary

circumstances. State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (1999). Several reasons

implore this rule—the sight of a shackled defendant may suggest he is a dangerous and

untrustworthy person, may violate his presumption of innocence, restrict his ability to assist

counsel, interfere with the right to testify in his own behalf, or deprive him of the full use of his

faculties. State v. Damon, 144 Wn.2d 686, 690-91, 25 P.3d 418 (2001).

       The trial court has broad discretion to determine what security measures are necessary to

maintain decorum in the courtroom and to protect the safety of its occupants. Id. at 691.

Generally, shackles should “‘be used only when necessary to prevent injury to those in the

courtroom, to prevent disorderly conduct at trial, or to prevent an escape.’” Id. (quoting State v.

Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981)). In determining whether the use of shackles

is justified, the trial court may consider the following factors:

       “The seriousness of the present charge against the defendant; defendant’s
       temperament and character; his age and physical attributes; his past record; past
       escapes or attempted escapes, and evidence of a present plan to escape; threats to
       harm others or cause a disturbance; self-destructive tendencies; the risk of mob
       violence or of attempted revenge by others; the possibility of rescue by other
       offenders still at large; the size and the mood of the audience; the nature and

                                                   7
No. 48072-7-II


       physical security of the courtroom; and the adequacy and availability of alternative
       remedies.”

Id. (quoting Finch, 137 Wn.2d at 848) (alteration marks omitted).

       The trial court must make its decision based on facts set forth in the record, Hartzog, 96

Wn.2d at 400, and should allow the use of shackles only after conducting a hearing and entering

findings into the record that are sufficient to justify the use of the shackles. Damon, 144 Wn.2d

at 691-92. Importantly, because shackles and other forms of restraint are a measure of “last

resort,” the trial court “must consider less restrictive alternatives before imposing physical

restraints,” Finch, 137 Wn.2d at 850 (emphasis added), such as the use of additional security

personnel, metal detectors, or other security devices. Hartzog, 96 Wn.2d at 401.

       Here, after defense counsel objected to the use of shackles, the trial court responded that

Lomax had suggested he would flee if given the opportunity to do so. On that basis,2 the trial

court required Lomax to be shackled for the remainder of the trial. The trial court, however,

made no attempt to examine whether less restrictive alternatives to leg shackles may have

addressed Lomax’s escape risk.

       In State v. Afeworki, 189 Wn. App. 327, 355, 358 P.3d 1186 (2015), review denied, 184

Wn.2d 1036 (2016), Division One of our court upheld the trial court’s decision to impose

shackles on a defendant, noting:


2
  The State also argues that because Lomax was facing a mandatory life sentence that the trial
court did not abuse its discretion in imposing the shackles. But nothing in the record indicates
that the trial court considered Lomax’s potential punishment in determining whether to impose
shackles on him. We cannot make this assumption when a trial court may only impose shackles
“after a hearing with a record evidencing the reasons for the action taken.” Hartzog, 96 Wn.2d
at 401 (emphasis added). Here, the record indicates that the trial court imposed shackles on the
sole basis that Lomax was an escape risk.


                                                  8
No. 48072-7-II


        [A]s required, the court considered alternative security measures. For example, the
        court rejected the use of more restrictive physical restraints. . . . Moreover, as noted,
        the court ordered other security measures that would work in concert with the
        [restraint].

With nothing in the record or findings showing that the trial court considered whether additional

security guards, for example, may have adequately reduced Lomax’s potential escape risk, we

cannot say the trial court was justified in imposing the leg shackles. Thus, we hold that the trial

court abused its discretion in imposing shackles because it failed to consider less restrictive

alternatives.3

2.      Prejudice

        Because the trial court abused its discretion when it ordered Lomax to wear shackles, we

next examine whether he has shown prejudice. See Davis, 152 Wn.2d at 694. Prejudice is

shown if the defendant demonstrates that the shackling “‘had substantial or injurious effect or

influence on the jury’s verdict.’” Id. (quoting State v. Hutchinson, 135 Wn.2d 863, 888, 959

P.2d 1061 (1998)). To meet this burden, the defendant must show that, based on the record, the

jury could observe the shackles or that the shackles substantially impaired the defendant’s ability

to assist in his trial defense. State v. Monschke, 133 Wn. App. 313, 336, 135 P.3d 566 (2006)

(citing Finch, 137 Wn.2d at 845). Only if prejudice is shown from the defendant wearing

shackles does the burden shift to the State to prove that the use of restraints was harmless beyond

a reasonable doubt. See Davis, 152 Wn.2d at 694.


3
  In addition, Lomax argues that the trial court abused its discretion because it deferred to the
judgment of correctional officers. A trial court cannot base its decision solely on a correctional
officer’s recommendation that shackles should be imposed. Finch, 137 Wn.2d at 853; Damon,
144 Wn.2d at 692. However, finding that the trial court clearly did not consider less restrictive
alternatives, we decline to examine the merits of this alleged error.


                                                   9
No. 48072-7-II


       Damon, 144 Wn.2d 686 and State v. Flieger, 91 Wn. App. 236, 955 P.2d 872 (1998)

involve situations where the defendant met his initial burden to prove that the use of restraints

had a substantial or injurious effect or influence on the jury’s verdict. In Damon, the defendant

was required to use a restraint chair that had straps across both his shoulders, down and across

his waist, and his legs were strapped and manacled. Id. at 693. The Damon court held that the

jurors must have observed that he was in a restraint chair and could have inferred that he was a

dangerous individual. Id. Similarly, in Flieger, 91 Wn. App. at 238-39, the defendant was

required to wear a shock box, and the record reflected that jurors noticed the shock box and

discussed why the defendant had to wear it. The court held that because the jurors were aware of

the shock box and were speculating about it, they could have inferred that the defendant was a

dangerous person who could not be trusted or controlled. Id. at 242.

       Here, Lomax does not show that the jury was aware he was wearing leg shackles or that

he was otherwise prejudiced from having to wear them. After defense counsel argued that the

jury could see the leg shackles under the table, the trial court disagreed that the shackles were

“openly visible to the jury.” RP at 412. The trial court observed that “[f]rom where the jury is

sitting there’s a panel on the table that blocks view of Mr. Lomax. The shackles are down

around his ankles. . . . I can barely see them from here and I have a direct view of Mr. Lomax.”

RP at 412. At best, the record reflects that defense counsel and the trial court disputed whether

the jurors in fact could see the shackles from their point of view. Unlike Damon and Flieger,

where the record clearly indicated that jurors could observe the defendant in shackles, the

conflicting observations of defense counsel and the trial court do not establish that the jurors




                                                 10
No. 48072-7-II


could see Lomax wearing shackles. Thus, Lomax fails to carry the burden to show that the jury

observed the shackles and was subject to some prejudice therefrom.

       Lomax argues, though, that if we only measure prejudice based on whether the jury could

observe his shackles, it would “ignore[] the actual effect and prejudice caused by restraint,” such

as his ability to assist in his defense. Br. of Appellant at 13 (citing Riggins v. Nevada, 504 U.S.

127, 137, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992)). Lomax suggests that the “prejudice

analysis [is] far more searching than simply determining whether the restraint was visible.” Br.

of Appellant at 14.

       In Riggins, 504 U.S. at 137, the Court rejected the proposition that the defendant had to

demonstrate actual prejudice from the record because it was nearly impossible, beyond

speculation, to show how the trial would have proceeded differently if the defendant had not

been on Mellaril, a psychotropic drug. Although it was nearly impossible to show prejudice, the

defendant in Riggins had evidentiary support that Mellaril could substantially impair his ability

to assist in his trial defense. Id. The record provided that the amount of Mellaril administered to

Riggins had the potential to impair his cognitive abilities during trial. Id. Thus, Riggins does not

undermine Lomax’s burden to show prejudice by providing evidence of the prejudicial effect of

the shackles. Monschke, 133 Wn. App. at 336.

       In State v. Walker, 185 Wn. App. 790, 802-03, 344 P.3d 227, review denied, 183 Wn.2d

1025 (2015), the court found no prejudice could be presumed based on shackling when the

defendant failed to point to any evidence that the shackles impaired his ability to assist with his

defense. In Monschke, 133 Wn. App. at 337, the court held that the defendant failed to show that

a stun belt underneath the defendant’s clothes hampered his ability to participate in his defense


                                                 11
No. 48072-7-II


when he only offered “conclusory statements” to support his claim. Like Walker and Monschke,

we have no evidentiary basis on which to find Lomax’s ability to assist with his trial was

undermined.

        Lomax also argues that Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 253

(1970) and Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), both

cited in Riggins, require us to presume his leg shackles prejudiced his ability to assist in his

defense. In those two cases, where one defendant was forced to wear prison clothing, Estelle,

425 U.S. at 504, and the other bound and gagged for his trial, Allen, 397 U.S. at 344, the courts

found prejudice because of the obvious consequences from the jury observing the defendant.

Further, in Allen, 397 U.S. at 344, the defendant, who was in a condition of total physical

restraint from the gag and bounds, was prejudiced because he was unable to assist at his trial.

        Estelle and Allen dictate the same prejudice standard that Riggins, Damon, Flieger,

Walker, and Monschke command: that Lomax must show, based on the record, that the jury

could observe the shackles or that the shackles substantially impaired his ability to assist in his

trial defense. Prison clothing and the use of bindings and a gag carry an inherent imprimatur of

prejudice. But where a defendant is only restrained by the use of leg shackles, he must

demonstrate that they were either observed or that the shackles somehow impaired his ability to

participate in the trial.

        Lomax fails to show that the jury observed his leg shackles or that the shackles otherwise

compromised his defense. Thus, even though the trial court abused its discretion in requiring

Lomax to wear the shackles, he fails to show prejudice, i.e. that “the shackling ‘had substantial

or injurious effect or influence on the jury’s verdict.’” Davis, 152 Wn.2d at 694 (quoting


                                                 12
No. 48072-7-II


Hutchinson, 135 Wn.2d at 888). Because Lomax fails to meet his burden in showing prejudice,

we need not reach the issue of whether the State has demonstrated that the use of shackles was

harmless beyond a reasonable doubt. See Id. Accordingly, Lomax’s shackling claim fails.

                                 II. IMPEACHMENT OF MCCARTY

       Lomax argues that by not allowing him to impeach McCarty with her three prior juvenile

adjudications for taking a motor vehicle without permission, the trial court (1) abused its

discretion and (2) violated his constitutional right to confront witnesses. For the reasons below,

we disagree.

1.     ER 609(d)

       We review rulings under ER 609 for an abuse of discretion. State v. Rivers, 129 Wn.2d

697, 704-05, 921 P.2d 495 (1996). ER 609(d), which governs the admissibility of prior juvenile

adjudications, states:

       Evidence of juvenile adjudications is generally not admissible under this rule. The
       court may, however, in a criminal case allow evidence of a finding of guilt in a
       juvenile offense proceeding of a witness other than the accused [1] if conviction of
       the offense would be admissible to attack the credibility of an adult and [2] the court
       is satisfied that admission in evidence is necessary for a fair determination of the
       issue of guilt or innocence.

Taking a motor vehicle without permission qualifies as a crime of dishonesty, making it

normally admissible against a witness under ER 609(a)(2).4 State v. Trepanier, 71 Wn. App.

372, 381, 858 P.2d 511 (1993). Thus, the first prong of the ER 609(d) test is met.



4
  “For the purpose of attacking the credibility of a witness in a criminal or civil case,
evidence that the witness has been convicted of a crime shall be admitted if elicited from
the witness or established by public record during examination of the witness but only if
the crime . . . involved dishonesty or false statement, regardless of the punishment.” ER
609(a)(2).

                                                 13
No. 48072-7-II


          The second prong of ER 609(d) required Lomax to make a “positive showing” that the

admission of McCarty’s taking of motor vehicle adjudications was necessary for a fair

determination of the issue of guilt or innocence. State v. Gerard, 36 Wn. App. 7, 12, 671 P.2d

286 (1983). “In the absence of any indication of special reasons favoring admissibility, the

general rule is that the adjudications are inadmissible.” Id. If the juvenile adjudications are

offered simply to impeach a witness, the defendant does not meet his burden in showing that the

evidence was necessary for a fair determination of guilt. See Id.

          Defense counsel only offered McCarty’s three juvenile adjudications for purposes of

impeachment. Counsel moved the court to admit them only to attack her credibility and did not

offer any additional reasons beyond the general statement that “they’re relevant given the weight

her testimony has.” RP at 278.

          On this record, defense counsel failed to make a showing that there was any reason, other

than a general attack on her credibility, that admitting the three prior juvenile adjudications was

necessary to determine Lomax’s innocence or guilt. Under Gerard, 36 Wn. App. at 12, the

burden was on Lomax to present reasons other than impeachment to demonstrate that the

evidence was necessary for a fair determination. A general statement that a witness’s credibility

is relevant given the weight of her testimony does not sufficiently articulate why those

adjudications are “necessary for a fair determination of the issue of guilt or innocence.” ER

609(d).

          Lomax argues that without the prior juvenile adjudications, “the jury could not properly

assess Ms. McCarty’s honesty as a witness. . . . Lomax did not have other evidence from which

to argue Ms. McCarty may not have been a truthful witness.” Br. of Appellant at 17. Defense


                                                  14
No. 48072-7-II


counsel, however, was able to attack McCarty’s veracity in a similar fashion as the prior

adjudications would have. Defense counsel was able to elicit that she was on methamphetamine

and heroin and had forgotten what happened on the day that she dropped off Lomax. This,

coupled with the fact that McCarty was a hostile witness and would hardly answer the State’s

questions, presented reasons to question her credibility to the jury. For these reasons, the prior

juvenile adjudications were not essential to evaluating McCarty’s veracity.

       Accordingly, the trial court did not abuse its discretion in denying Lomax’s ER 609(d)

motion.

2.     Right to Confrontation

       Next, Lomax argues that his confrontation clause rights were violated because of the trial

court’s refusal to admit the prior juvenile adjudications against McCarty. We disagree.

       Lomax did not raise a confrontation clause challenge below. Under RAP 2.5(a),5 we

“may refuse to review any claim of error which was not raised in the trial court.” However, a

party may raise for the first time on appeal a “manifest error affecting a constitutional right.”

RAP 2.5(a)(3). Because the right of confrontation is of constitutional magnitude, Lomax only

needs to show that the alleged error was “manifest” in order for us to reach it. RAP 2.5(a)(3);

see also State v. Hart, 195 Wn. App. 449, 460, 381 P.3d 142 (2016), review denied, 187 Wn.2d

1011 (2017). To show an error was “manifest,” one must show “actual prejudice.” State v.

O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009), as corrected (Jan. 21, 2010). To demonstrate




5
 We view RAP 2.5 as a procedural rule governing when challenges under the confrontation
clause may be raised consistent with Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313-14 n.3,
129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

                                                 15
No. 48072-7-II


actual prejudice, one must make a plausible showing that the asserted error had practical and

identifiable consequences in the trial of the case. Id.

        In order to determine whether Lomax has demonstrated a “manifest” confrontational

clause error, we review the general standards governing a confrontation clause challenge. A

confrontation clause challenge is reviewed de novo. State v. Jasper, 174 Wn.2d 96, 108, 271

P.3d 876 (2012). Under the sixth amendment to the United States Constitution and article 1,

section 22 of the Washington Constitution, a defendant possesses the right to confront and cross-

examine adverse witnesses. State v. Barnes, 54 Wn. App. 536, 538, 774 P.2d 547 (1989); State

v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). However, this right is not absolute. State

v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). Courts may, within their discretion, deny

cross-examination if the evidence sought is vague, argumentative, or speculative. Id. at 620-21.

Thus, the confrontation right is subject to the following test:

        First, the evidence must be of at least minimal relevance. Second, if relevant, the
        burden is on the State to show the evidence is so prejudicial as to disrupt the fairness
        of the fact-finding process at trial. Finally, the State’s interest to exclude prejudicial
        evidence must be balanced against the defendant's need for the information sought,
        and only if the State’s interest outweighs the defendant’s need can otherwise
        relevant information be withheld.

Id. at 622.

        McCarty’s prior juvenile adjudications for taking a motor vehicle without permission

were at least relevant to impeach her veracity. However, our prior cases have established that the




                                                   16
No. 48072-7-II


State has a compelling interest “in insuring that witnesses are not discouraged from coming

forward with evidence of a crime out of fear of having a prior conviction brought forward.”

State v. Martinez, 38 Wn. App. 421, 424, 685 P.2d 650 (1984); accord Barnes, 54 Wn. App. at

539. We must, then, determine whether the State’s interest in excluding the prejudicial evidence

outweighed Lomax’s need to admit the prior juvenile adjudications.

       In weighing these two interests, the State’s interest will prevail if the defendant has the

opportunity to impeach the State’s witness in a similar way. In Barnes, 54 Wn. App. at 539, the

court held that the defendant’s interest did not outweigh the State’s need to exclude a prior

conviction for the reason that “the impeachment through use of the prior conviction was minimal

because . . . there was other evidence of a sufficient quantity before the jury to impeach Mr.

Redmond.” Similarly, in Martinez, 38 Wn. App. at 424-25, the court reasoned that “Martinez’s

interest in impeaching the victim with his prior conviction is minimal . . . because there was

already abundant evidence impeaching him” and thus held that the defendant’s right to

confrontation was not violated.

       McCarty was a key witness for the State’s case because her testimony corroborated the

DNA evidence. Thus, impeachment of that testimony was crucial to creating a reasonable doubt

in the jury’s minds. As discussed earlier, however, defense counsel was able to impeach

McCarty’s credibility during cross-examination by bringing out that she was on

methamphetamine and heroin and did not remember what happened on the day of the burglary.

In the same fashion as Barnes and Martinez, the admission of McCarty’s three prior juvenile

adjudications would have minimally, if at all, further impeached the crumbling veracity of

McCarty’s testimony. The State’s interest in protecting its witness outweighed Lomax’s little


                                                17
No. 48072-7-II


need to admit the prior juvenile adjudications, and he fails to show a confrontation clause

violation.

       Because no confrontation clause violation occurred, Lomax fails to show that he suffered

from actual prejudice with practical and identifiable consequences. O’Hara, 167 Wn.2d at 99.

Accordingly, we deem this alleged error waived because it was not manifest. RAP 2.5(a)(3).

                                III. PROSECUTORIAL MISCONDUCT

       Lomax argues that the State improperly vouched for McCarty when the prosecutor stated

in closing argument that “she’s not making this up.” Br. of Appellant at 23-26.

       To establish prosecutorial misconduct, the defendant must prove that the prosecuting

attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341

P.3d 268 (2015). “In analyzing prejudice, we do not look at the comments in isolation, but in the

context of the total argument, the issues in the case, the evidence, and the instructions given to

the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).

       If the defendant did not object to the alleged misconduct, he 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. State v. Emery, 174 Wn.2d 741, 760-61,

278 P.3d 653 (2012). “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 P.3d 43 (2011)).

       It is improper for a prosecutor to vouch for a witness’s credibility. State v. Lewis, 156

Wn. App. 230, 240, 233 P.3d 891 (2010). Lomax contends that the State improperly vouched for


                                                 18
No. 48072-7-II


McCarty when it stated that “she’s not making this up.” RP at 428. Assuming without deciding

that this remark was improper, Lomax’s challenge to it was waived. If Lomax had objected, a

curative jury instruction could have obviated any prejudice from the State’s single remark. Thus,

Lomax’s prosecutorial misconduct claim fails.

                               IV. PREJUDICE/CUMULATIVE ERROR

       Lomax argues that even if we believe that each error alone—the imposition of shackles,

the restriction on Lomax from impeaching McCarty with prior juvenile adjudications, and the

prosecutor’s improper vouching—would not result in an unfair trial, in the aggregate, they do.

       “Under the cumulative error doctrine, a defendant may be entitled to a new trial when

cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. As

determined in Part I and II above, we found that Lomax failed to demonstrate prejudice from

making him wear leg shackles, and that the trial court did not abuse its discretion or violate his

confrontation right by preventing him from impeaching McCarty with her prior adjudications.

Thus, no prejudice from these errors can contribute to a cumulative prejudice calculus. We are

left only with the prejudice from the assumed improper vouching, which we deemed waived in

Part III because the remark could have easily been remedied with a curative instruction.

Accordingly, the cumulative error claim fails.

                                    V. MANDATORY DNA FEE

       Lomax argues that the mandatory $100 DNA fee assessed under RCW 43.43.75416

violated his constitutional rights to substantive due process and equal protection. We disagree.


6
  RCW 43.43.7541 was amended in 2015. This amendment does not affect our disposition of
this case.


                                                 19
No. 48072-7-II


       RCW 43.43.7541 requires every defendant to pay a $100 DNA fee when subjected to a

sentence for any felony conviction or other specified misdemeanors and juvenile equivalents

listed under RCW 43.43.754(1)(a).7 In State v. Mathers, 193 Wn. App. 913, 926, 928-29, 376

P.3d 1163, review denied, 186 Wn.2d 1015 (2016), our court held that the mandatory $100 DNA

fee did not violate Mathers’ rights to substantive due process or equal protection.

       In Lomax’s opening briefing, he acknowledges Mathers is contrary to his position, but

states that “[i]n anticipation of a Motion for Reconsideration [on Mathers], I am leaving my

version of these issues unchanged.” Br. of Appellant at 27 n.5. No reconsideration motion was

ever submitted, and Mathers’ petition for review to the Supreme Court was denied. State v.

Mathers, 186 Wn.2d 1015, 380 P.3d 482 (2016). After the date the petition for review was

denied, Lomax stated in his reply brief that all three divisions of the Court of Appeals,8 which

includes our opinion in Mathers, resolve “the issue contrary to the position taken by Lomax” and

does not ask us to consider his arguments again. Reply Br. of Appellant at 4. Because Lomax

essentially concedes his argument is futile and does not invite the court to readdress his

arguments, we simply follow Mathers and decline to further address any substantive due process

and equal protection challenges to the $100 DNA fee.


7
 RCW 43.43.754 was amended in 2015. This amendment does not affect our disposition of this
case.
8
  In his reply brief, Lomax acknowledges that every division of the Court of Appeals has issued
opinions contrary to his position. Reply Br. of Appellant at 4 (citing e.g. Mathers, 193 Wn. App.
at 927-28; State v. Shelton, 194 Wn. App. 660, 663, 378 P.3d 230 (2016), review denied, 187
Wn.2d 1002 (2017); State v. Stoddard, 192 Wn. App. 222, 224, 366 P.3d 474 (2016)). We note
that our division’s opinion in Mathers holds that the $100 mandatory DNA fee did not violate
Mathers’ rights to substantive due process or equal protection. Neither Shelton from Division
One nor Stoddard from Division Three addresses an equal protection challenge.


                                                20
No. 48072-7-II


                                       VI. DNA SAMPLE

       Lomax argues that the sentencing court abused its discretion by ordering him to submit

another DNA sample despite the fact that he had already given one. We disagree.

       “A biological sample must be collected for purposes of DNA identification analysis from

. . . [e]very adult or juvenile individual convicted of a felony.” RCW 43.43.754(1)(a). However,

“[i]f the Washington state patrol crime laboratory already has a DNA sample from an individual

for a qualifying offense, a subsequent submission is not required to be submitted.” RCW

43.43.754(2).

       In State v. Lewis, 194 Wn. App. 709, 720, 379 P.3d 129, review denied, 186 Wn.2d 1025

(2016), Lewis claimed that the trial court erred by ordering him to submit another DNA sample.

To support his argument, Lewis attached his judgment and sentence that lists his criminal history

from 1995-2004, which was riddled with felony convictions. Id. at 720-21. However, the court

declined to address his challenge because

       [n]othing in the record shows that Lewis actually submitted a DNA sample or that
       the Washington State Patrol Crime Laboratory already has a DNA sample for a
       qualifying offense. Because Lewis makes no showing that RCW 43.43.754(2)
       applies, the record does not support his argument that the court erred by ordering
       him to submit a DNA sample for testing.

Id. at 721 (citation omitted).

       Similarly to Lewis, Lomax relies on his prior judgment and sentences and argues that we

can infer that his DNA sample has already been taken because of his uncontested criminal

history between 1999 and 2013 for numerous felonies when the mandatory DNA collection law

was effective. As in Lewis, we hold that despite Lomax’s circumstantial evidence, he fails to




                                               21
No. 48072-7-II


show that a DNA sample has already been submitted for one of his prior offenses. Accordingly,

this claim fails.

                                    VII. SCRIVENER’S ERRORS

        Lomax argues that we should remand his case to the sentencing court to correct two

scrivener’s errors on his judgment and sentence: one for the wrong date of the crime and the

other for the wrong term of punishment. The State concedes that we should remand to correct

the wrong date, but does not address the wrong term of punishment. We accept the State’s

concession to correct the date, as well as order the sentencing court to correct the maximum term

of punishment.

        We are empowered to remand a case to correct a judgment and sentence, even if no

prejudice is demonstrated from the scrivener’s error. See State v. Moten, 95 Wn. App. 927, 929,

976 P.2d 1286 (1999). Lomax’s judgment and sentence states he committed a burglary on

September 20, 2014, but he was convicted for a September 20, 2013 offense. Further, his

judgment and sentence lists that the maximum term he will serve is 25 years to life for his first

degree burglary conviction. Under RCW 9A.20.0219 the maximum term of punishment for a

class A felony, such as first degree burglary, RCW 9A.52.020, is life imprisonment—not 25

years to life.10




9
 RCW 9A.20.021 was amended in 2015. This amendment does not affect our disposition of this
case.
10
  In his briefing, Lomax cites to RCW 9.94A.570, part of the Sentencing Reform Act of 1981
(SRA), as the source for correcting the maximum term. However, the error as to the term was in
the box with information as to the count itself, not the SRA sentence.

                                                22
No. 48072-7-II


        Accordingly, we remand this case to the sentencing court to correct these scrivener’s

errors by changing the date of the offense to September 20, 2013 and changing the maximum

term of punishment to life imprisonment.

                                      VIII. APPELLATE COSTS

        Lomax asks that we exercise our discretion to deny any appellate costs the State requests.

The State objects to our consideration of appellate costs at this time, noting that it has not yet

decided whether to request costs.

        Under the newly revised provisions of RAP 14.2, a commissioner of this court will

determine whether to award appellate costs if the State decides to file a cost bill and if Lomax

objects to that cost bill.

                                              IX. SAG

        In his SAG, Lomax argues that (1) juror number 25 had a conflict of interest that

prejudiced his trial and (2) the trial court abused its discretion in denying his counsel’s requests

for a mistrial. For the reasons below, we disagree.

1.      Juror Number 25

        Lomax argues that he was prejudiced by the presence of juror 25, a “court clerk” in the

Grays Harbor County Courthouse, because she had a “major conflict of interest” in that she knew

the judge, prosecutor, and defense attorney involved in the case. SAG, Att. 1. Indeed, the voir

dire process brought out that juror 25 knew the judge, prosecutor, and defense attorney in her

role as court clerk. After that, she was questioned whether there was “any reason that [she]

would not be comfortable being a juror in this case or any reason that would make it difficult for

[her] to be fair and impartial to both sides,” to which she responded in the negative. RP at 52.


                                                  23
No. 48072-7-II


On this record, Lomax fails to show that juror 25 had a conflict of interest due to her relationship

with the judge or attorneys.

          Lomax also claims that juror 25 had a conflict of interest because she witnessed him

dressed in a jump suit and in shackles as he moved in and out of the courthouse. We have

nothing in the record, though, to indicate that juror 25 actually observed Lomax in this capacity.

Lomax may raise this issue again in a personal restraint petition (PRP), where he can supplement

the record to support his argument. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251

(1995).

          Lomax also contends that he told his defense counsel to remove juror 25 from his case,

but his attorney declined to do so. Lomax’s unsworn statements in his SAG cannot supplement

the record before us. Again, he may raise this issue again in a PRP, where he can properly

supplement the record. Id.

          Accordingly, the claims related to juror 25 fail.

2.        Mistrial

          Lomax argues that the trial court abused its discretion in denying his requests for a

mistrial after the State elicited from its witnesses, Blundred and Krohn, that they received

anonymous tips that Lomax was involved in the burglary.

          We apply the abuse of discretion standard in reviewing a trial court’s denial of a motion

for mistrial. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). We will find abuse

only if no reasonable judge would have reached the same conclusion. Id.

          The trial court should grant a mistrial only when the defendant has been so prejudiced

that nothing short of a new trial can insure that the defendant will be tried fairly. Id. In


                                                   24
No. 48072-7-II


determining whether a trial court abused its discretion, we gauge the effect of an irregularity by

examining (1) its seriousness, (2) whether it involved cumulative evidence, and (3) whether the

trial court properly instructed the jury to disregard it. Id.

        The first motion for a mistrial occurred during Blundred’s direct examination, where it

was brought out that Lomax’s name came up after Krohn received “tips” during the

investigation. RP at 251-52. In commenting on his interview with Lomax, Blundred stated,

“[Lomax] denied any involvement, denied any knowledge. When asked about why his name

would be brought up in this time [sic] of a situation.” RP at 252 (emphasis added). Before

Blundred could continue, defense counsel objected, and the prosecutor agreed to move on from

this line of questioning. After Blundred’s testimony finished, defense counsel moved for a

mistrial, stating that the tip evidence was a “bell that I don’t think we can unring with a jury

instruction or . . . curative comment.” RP at 272. The trial court denied the motion, stating:

        [I]t may have been a bell, but it wasn’t a very loud bell, it was more like a tinkle. I
        agree there was a reference to a tip. There was no objection at the time, no motion
        to strike. I would entertain a motion right now to give the jury a curative instruction
        and ask to disregard that testimony and strike testimony from Detective Blundred
        regarding the fact that he contacted Mr. Lomax in response to a tip he had received.

RP at 272. Defense counsel declined the court’s offer for a curative instruction.

        The second motion for a mistrial occurred later in Krohn’s direct, where in referencing

his interview with Lomax, he stated that he challenged Lomax’s denial of the offense by

“ask[ing] him why somebody would say that.” RP at 318. This statement received an immediate

objection from defense counsel, which was overruled. Krohn’s testimony continued, in which he

stated that he “asked [Lomax] why somebody would claim that he was the one,” which again

received an objection. RP at 318 (emphasis added). At this time, the trial court admonished the


                                                   25
No. 48072-7-II


State, saying that it could not introduce inadmissible hearsay and that Krohn’s statements “tell[]

the jury that someone who Mr. Lomax is not able to confront at this trial accused him of

committing the crime.” RP at 318-20. Defense counsel, again, moved for a mistrial, which the

trial court denied. The trial court, however, stated it would instruct the jury to disregard Krohn’s

last comment, which defense counsel agreed was a sufficient remedy.

       On this record, the trial court’s denial of the motions for mistrial was not an abuse of

discretion. In both instances, the trial court examined the possible prejudice inflicted on Lomax

from Blundred and Krohn’s remarks. It also provided a reasonable solution to those problems.

In the first instance, it offered the defense a curative instruction, which Lomax declined. In the

second instance, the trial court instructed the jury to disregard Krohn’s problematic comments,

which defense counsel agreed was an appropriate remedy. Given the nature of the errors

presented, we hold that the trial court appropriately exercised its discretion in these instances and

thus Lomax’s claims fail.

                                          CONCLUSION

       We hold that Lomax fails to demonstrate a prejudicial trial error. We also hold that no

sentencing error occurred except for the two scrivener’s errors. Accordingly, we affirm Lomax’s

conviction and sentencing conditions, but remand for the sentencing court to correct the




                                                 26
No. 48072-7-II


scrivener’s errors as directed.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 LEE, J.




 MELNICK, J.




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