IN THE COURT OF APPEALS OF THE STATE OF WASHINGTORE CnP —4= = --4 - 3:00. rrl --1 CD THE STATE OF WASHINGTON, ) ) No. 73805-4-1 Respondent, ) DIVISION ONE • =r- v. ) • -4C7 ) UNPUBLISHED OPIN1012 MARCEL CEDRAN SAMPSON, ) ) Appellant. ) FILED: May 22, 2017
APPELWICK, J.-A jury convicted Sampson of three counts of first degree
child molestation. On appeal, he argues that the trial court erroneously excluded
his expert, admitted prejudicial hearsay, failed to compel testimony from two
witnesses, and allowed two exhibit videos to be replayed to the jury. He also
argues that his persistent offender sentence violates equal protection and that he
should not be liable for appellate costs. We affirm.
FACTS
Marcel Sampson was romantically involved with Fuhyda Tucker. Tucker
discovered that Sampson was also seeing other women. One day, in March
2009, while Sampson stopped by Tucker's apartment, Tucker looked through
Sampson's phone for evidence of his infidelity. Instead, Tucker found a video of
her daughter, P.W., taking off her clothes and preparing to shower. No. 73805-4-1/2
Tucker notified the police. After discovering more about Sampson's past,
she also notified Janine Thornton, with whom Sampson had also been
romantically involved.
A few months later, in June 2009, Thornton's niece, 13 year old P.R.,
reported to her school principal that a man named Marcel had sexually assaulted
her. The principal alerted Detective Donna Stangeland. Detective Stangeland
then interviewed P.R. P.R. disclosed that some of the assaults had occurred at
Thornton's house.
Detective Stangeland contacted Thornton, and notified her of P.R.'s
allegations. Thornton has five children, including L.H. and L.R. Sampson would
occasionally babysit L.H. and L.R. Thornton admitted to Stangeland that L.H.
and L.R. had told her that Sampson had sexual contact with them. Thornton did
not disclose this abuse to the authorities until being contacted by Stangeland
because she was fearful of losing custody of her children. L.R. had told Thornton
that Sampson had drank L.R.'s urine, and tried to touch her genitals. L.H. had
told his mother that Sampson had tried to sodomize him, that "white stuff' was
coming out of Sampson's penis, and that Sampson had put L.H.'s penis in his
mouth.
In 2011, Sampson was found guilty of first degree rape of child, first
degree child molestation, tampering with a witness, domestic violence felony
violation of a court order, and two counts of communication with a minor for
immoral purposes. This court overturned the convictions of rape of a child, child
molestation, and communicating with a minor for an immoral purpose, because
2 No. 73805-4-1/3
the trial court erroneously admitted evidence of Sampson's prior bad acts. State
v. Sampson, No. 67868-0-1; slip op. at 15-16 (Wash. Ct. App. July 1, 2013)
(unpublished), http://www.courts.wa.gov/opinions/pdf/678680.pdf.
Sampson was eventually recharged with three counts of child molestation
in the first degree, and two counts of communication with a minor for immoral
purposes. At the second trial, he was convicted of the three counts of child
molestation in the first degree for his abuse of L.R., L.H., and P.W. But, he was
acquitted of both counts of communication with a minor for immoral purposes,
which involved L.R. and another child, L.R. 1998.1 He was sentenced to life in
prison as a persistent offender. Sampson appeals.
DISCUSSION
Sampson makes seven arguments on appeal. First, he argues that the
trial court erroneously excluded expert testimony. Second, he argues that the
trial court committed reversible error by admitting hearsay testimony. Third, he
contends that the trial court erred by not compelling the attendance of two
witnesses. Fourth, he argues that the trial court erred in allowing the jury to
review three video exhibits. Fifth, he alleges that the foregoing errors amount to
cumulative error. Sixth, he argues that his persistent offender life sentence
violates equal protection. Finally, he also contends that he should not be liable
for appellate costs due to his indigency.
1 L.R. 1998 was the alleged victim of count V, communicating with a minor for immoral purposes, for which Sampson was found not guilty. L.R. 1998 is L.R. and L.H.'s cousin. We identify her by initials and birth year (L.R. 1998) to distinguish her from the other child with initials L.R.
3 No. 73805-4-1/4
I. Exclusion of Expert Testimony
Sampson first argues that the trial court erred in excluding expert
testimony. Sampson planned to call Dr. John Yuille as an expert witness. Dr.
Yuille is a professor emeritus of psychology at the University of British Columbia.
His research is in human memory and interviewing techniques.
Yuille's report discussed evaluating child witnesses' credibility. Using
what he describes as "statement analysis," Dr. Yuille purports to analyze whether
a child's recollections are the product of actual memories. He concludes, based
on statement analysis, that the child witnesses' memories here were likely
"contaminated," and that it is "impossible to support the credibility of the
allegations." He cited three reasons for this conclusion: the children's allegations
changed with the passage of time, the allegations were characterized by
"incoherent or unlikely features," and that the evidence may have been
influenced by communication between witnesses.
The State moved to exclude Dr. Yuille's testimony. The trial court granted
this motion:
It . . . is based upon things that everybody deals with in everyday life, which is conflicting statements, resolving contradictory statements between people, statements that change over time, statements being influenced by what other people have said and suggestibility.
And furthermore, probably most importantly, it clearly invades the province of the jury. I mean, it's the jury's job to decide credibility, and that's exactly what Dr. Yuille is proposing to do, is to basically comment on the credibility of the witnesses here, and that's what the jury needs to decide. So I'm not going to allow Dr. Yuille to testify about that before the jury.
4 No. 73805-4-1/5
On appeal, Sampson argues that the trial court abused its discretion, because
Dr. Yuille would have assisted the jury in making sense of inconsistencies in the
children's stories. Sampson contends that Dr. Yuille would not simply opine on
whether the children were lying. Rather, Sampson argues, Dr. Yuille would have
assisted the jury in evaluating the reliability of the child witnesses' statements,
which he argues is outside the competence of ordinary laypersons.
The admissibility of expert testimony is governed by ER 702, and requires
a case by case inquiry. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164
(2004). Under ER 702, a qualified expert may testify regarding scientific,
technical, or other specialized knowledge if it will assist the trier of fact to
understand the evidence or to determine a fact in issue. To admit expert
testimony under ER 702, the trial court must determine that the witness qualifies
as an expert and that the testimony will assist the trier of fact. In re Det. of
McGary, 175 Wn. App. 328, 338-39, 306 P.3d 1005(2013)
This court reviews a trial court's decision on whether to admit expert
testimony for abuse of discretion.2 See State v. Kalakosky, 121 Wn.2d 525, 541,
2 Sampson acknowledges that exclusion of expert testimony under the rules of evidence is reviewed for abuse of discretion. But, he also argues that the exclusion of the expert testimony infringed on his constitutional right to present a defense. He therefore argues that the panel should review this aspect of Dr. Yuille's exclusion de novo. But, a defendant's right to present a defense is subject to established rules of evidence designed to assure fairness and reliability. State v. Lizarraoa, 191 Wn. App. 530, 553, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022, 369 P.2d 501 (2016). Therefore, "a defendant's interest in presenting relevant evidence may 'bow to accommodate other legitimate interests in the criminal trial process.' " Id. (quoting Untied State v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)). Accordingly, we review the exclusion of Dr. Yuille's testimony for abuse of discretion.
5 No. 73805-4-1/6
852 P.2d 1064 (1993). A trial court's discretion is broad, and its decision should
be reversed only if it rests on unreasonable or untenable grounds. State v.
Rafav, 168 Wn. App. 734, 783-84, 285 P.3d 83(2012).
Sampson relies primarily on State v. Allen, 176 Wn.2d 611, 294 P.3d 679
(2013). There, a key fact was identification of the defendant, which was in part
based on his race. Id. at 614-15. A plurality of the Supreme Court held that the
trial court did not abuse its discretion in refusing to instruct the jury that it is more
difficult for some individuals to give eyewitness identifications of members of
another race. Id. at 614-15, 624. Despite this holding that seemingly cuts
against Sampson, he cites Allen because the plurality noted that expert
testimony would be an available tool on the issue of cross racial identification.3
Allen, 176 Wn.2d at 624 n.6.
Nevertheless, Allen does not mandate admission of Dr. Yuille's testimony.
The plurality's only comment on expert testimony was a two sentence footnote
that noted that experts are available to the parties. Id. at 624 n.6. The court did
not explore the scope of expert testimony that would be admissible, or declare
that a trial court must permit such testimony. See id. The court did not indicate
that these experts are entitled to comment on the truthfulness of witnesses'
testimony. See id. Moreover, the issue in Allen was a cautionary instruction. Id.
3 Sampson also cites State v. Lawson, 352 Or. 724, 291 P.3d 673 (2010) as persuasive authority. Similar to Allen, the Oregon Supreme Court held that expert testimony may be admissible to "educate the trier of fact concerning variables that can affect the reliability of eyewitness identification." Id. at 761. Like Allen, this case addressed eyewitness identification evidence, not credibility. Id. at 727.
6 No. 73805-4-1/7
at 614. But, here the issue is whether an expert must be permitted to tell the jury
whether another witness is in fact telling the truth. And, Allen addressed unique
issues related to cross-racial identification, not commonly understood indicia of
credibility such as inconsistent stories or witness collusion. Id. at 615.
Experts may not state an opinion about a victim's credibility, because such
testimony invades the province of the jury to weigh the evidence and decide the
credibility of witnesses. State v. King, 131 Wn. App. 789, 797, 130 P.3d 376
(2006). But, Dr. Yuille's report did just that. It explicitly stated that it was
"impossible to support the credibility of the allegations." The three bases that Dr.
Yuille's analysis relied upon—inconsistencies, "incoherent or unlikely features,"
and potential witness collusion—were all within the understanding of an ordinary
layperson. They did not require expert testimony for the jury to understand.
The trial court did not abuse its discretion in excluding Dr. Yuille's
testimony.
II. Hearsay
Sampson next contends that the trial court committed reversible error by
admitting hearsay statements of the children and of the detective.
A. Child Hearsay
Sampson contends that the trial court erroneously admitted statements
that were not admissible under the child hearsay exception. A child's out-of-court
statement about sexual acts performed with or on the child is not subject to the
prohibition on hearsay if the trial court finds that the statement is sufficiently
reliable and the child testifies at the hearing. RCW 9A.44.120. By its terms, this
7 No. 73805-4-1/8
rule does not apply to a statement by a child describing an act of sexual contact
performed on a different child. State v. Harris, 48 Wn. App. 279, 284, 738 P.2d
1059 (1987).
Video recordings of interviews of L.H. and L.R. were admitted as exhibits.4
Sampson argues that statements made by L.H. and L.R. about acts that they
witnessed Sampson perform on the other were not admissible, because RCW
9A.44.120 applies only to statements about acts against the child individually.
The State concedes that the trial court erred in admitting out-of-court
statements by L.H. and L.R. about acts not performed on themselves personally.
But, the State contends that the error was harmless, because, during their in
court testimony, L.H. and L.R. repeated their out-of-court statements about acts
that they saw Sampson perform on the other.5 Sampson contends that the error
requires reversal because it bolstered the credibility of the children's in court
We will not reverse due to an error in admitting evidence that does not
result in prejudice to the defendant. State v. Thomas, 150 Wn.2d 821, 871, 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). An evidentiary error is
not prejudicial unless there is a reasonable probability that, without the error, the
4 Exhibit 10 is a video of a child interview specialist's interview with L.R. Exhibit 11 is a video L.H.'s interview with the same specialist. Transcripts of L.R.'s and L.H.'s interviews were admitted as exhibits 15 and 16, respectively. 5 The State also argues that this argument was not preserved. Sampson objected to the admission of the videos on hearsay grounds, but did not identify the specific portions of the video that are hearsay. This objection is sufficient to warrant review.
8 No. 73805-4-1/9
outcome of the trial would have been different. See State v. Gower, 179 Wn.2d
851, 854-55, 321 P.3d 1178 (2014). The improper admission of evidence
constitutes harmless error if the evidence is of minor significance in reference to
the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d
389, 403, 945 P.2d 1120 (1997).
L.R.'s out-of-court interview focused on Sampson's acts against her. But,
multiple times during the interview contained in exhibit 15, L.R. also described
Sampson's sexual contact with her brother, L.H. She stated that she witnessed
Sampson touch L.H.'s bottom, and put his "privacy" in L.H.'s "butt." But, during
her trial testimony, L.R. testified to witnessing the same acts. The hearsay in the
interview exhibit was merely duplicative of her testimony. And, L.H. testified at
trial that Sampson, more than once, touched his "bottom" with "[h]is thing." L.H.
also testified that Sampson had put his mouth on his penis. L.R.'s interview
statements about Sampson's acts against L.H. that she witnessed were merely
duplicative of her in court testimony.
L.H.'s out-of-court interview focused on Sampson's acts against L.H. But,
L.H. testified that Sampson had touched L.R. on her bottom. L.R. also testified
about Sampson's other sexual acts against her. The only hearsay from L.H.
about L.R. that Sampson points to is L.H.'s statement that Sampson had "drank
his sister's pee." L.H. did not repeat this claim in his testimony. But, her mother,
Thornton, testified that L.R. had told her that Sampson had "drunk her pee."
L.R.'s statement to her mother qualifies for admission as child hearsay under
RCW 9A.44.120, because it is a statement by L.R. about Sampson's acts against
9 No. 73805-4-1/10
L.R. And, Sampson did not object to Thornton's testimony about L.R.'s
statement.
There is not a reasonable probability that excluding the hearsay from the
videos and their transcripts would have changed the result in this case. The
error was harmless.
B. Detective's Testimony
Sampson also contends that the trial court erred in allowing Detective
Stangeland to testify regarding statements made by Thornton.
Detective Stangeland testified that Thornton called Stangeland and told
her that Sampson's mother had banged on her front door and she was worried
that this was an act of retaliation. Pretrial, the State had stated it would offer this
evidence from Thornton herself, as evidence of Sampson's consciousness of
guilt. But, it did not. Instead, it came into evidence in the form of hearsay
testimony, with Stangeland testifying about what Thornton had told her.
Sampson objected on hearsay grounds, but was overruled. The State concedes
that the trial court should have sustained this objection, but argues that the error
was harmless.
Sampson contends that this error warrants reversal because it shows
Sampson's consciousness of guilt. But, there were numerous other pieces of
evidence that showed his consciousness of guilt. Most notably, Sampson
himself testified that he attempted to pay Thornton and Tucker to leave him
alone. One of Sampson's girlfriends, Christina Rock, testified that while
Sampson was in jail, he asked her to get rid of a laptop. And, Rock confirmed
10 No. 73805-4-1/11
Sampson's own statements about paying off Thornton and Tucker, testifying that
Sampson had discussed it "[d]ozens of times."
Given that Sampson admitted to attempting to pay Thornton, the hearsay
evidence that his mother tried to intervene was harmless. The erroneous
admission of the hearsay testimony from Stangeland was harmless.
III. Attendance of Witnesses
Sampson contends that the trial court erred in not compelling the
attendance of two witnesses at trial.
The Sixth Amendment to the United States Constitution provides that "[i]n
all criminal prosecutions, the accused shall enjoy the right. . . to have
compulsory process for obtaining witnesses in his favor." The defendant's right
to compel witness testimony is part of the right to present a defense. State v.
Wimbish, 100 Wn. App. 78, 82, 995 P.2d 626 (2000). But, although guarded
jealously, that right is not absolute. State v. Smith, 101 Wn.2d 36, 41, 677 P.2d
100 (1984).
The defendant's right to obtain witnesses in his favor applies only to
witnesses that are material to the defense. Id. And, the defendant bears the
burden of establishing materiality. Wimbish, 100 Wn. App. at 82. We review a
trial court's decision on whether to compel witness testimony for abuse of
discretion. See State v. Lodge, 42 Wn. App. 380, 391-92, 711 P.2d 1078 (1985).
A. N.P.
First, Sampson argues that the trial court should have compelled the
testimony of N.P. N.P. is Tucker's child and P.W.'s brother. N.P. testified at the
11 No. 73805-4-1/12
first trial. But, the State declined to pursue charges for acts involving N.P. at the
second trial. Sampson nevertheless sought to compel N.P.'s testimony because,
he contends, N.P.'s allegations against Sampson were inconsistent, and
therefore tended to suggest a lack of credibility. And, even though the second
trial did not involve charges relating to N.P., Sampson argues that N.P.'s
inconsistent story casts doubt about the charges involving Tucker' daughter,
P.W.
N.P. resides in California. Before an out-of-state witness can be
compelled to testify in accordance with RCW 10.55.060, the party seeking the
presence of the witness must establish that the witness' testimony is material.
Wimbish, 100 Wn. App. at 83. The mere assertion that witnesses are material is
insufficient. Id. Rather, the party seeking attendance of the witness must submit
an affidavit or other competent evidence presenting facts to which the witness
will testify. Id.
Sampson offered two sources of evidence in support of his motion. First,
he provided a declaration from his attorney that stated N.P. was a material
witness, because his testimony might reveal his mother's motives to influence
her children to frame Sampson. But, the declaration does not purport that Tucker
in fact instructed her children to frame Sampson. Instead, it points only to
circumstances surrounding N.P.'s allegations that show N.P.'s mother disliked
Sampson. Second, as an appendix to his motion, he provided a copy of the
previous appellate decision, a portion of which discussed the inconsistency of
N.P.'s allegations. But, the opinion's discussion of N.P.'s prior testimony merely
12 No. 73805-4-1/13
states that N.P. failed to articulate certain details of the alleged sexual abuse.
Such evidence does not go to the defense's theory that Sampson is being
framed.
Moreover, Tucker, N.P.'s mother, testified. Given that Tucker's motive to
fabricate allegations against Sampson was the primary reason Sampson sought
N.P.'s testimony, the importance of N.P.'s testimony was reduced. And, the trial
court noted that Sampson could renew his request to compel N.P., should he lay
a more specific foundation regarding the material testimony he would elicit from
N.P. Sampson never did. Given these facts, the trial court did not abuse its
discretion in declining to subpoena N.P.
B. Victim Advocate
Second, Sampson argues that the trial court should have compelled the
testimony of the victim advocate. Sampson introduced an allegedly exculpatory
e-mail message as an exhibit. The message, sent by the victim advocate to the
prosecutor, stated that L.R. 1998's mother said that L.R. 1998 said "it didn't
happen to her and that [P.W.] told her to say those things." The allegation
involving L.R. 1998 was that Sampson had shown pornography to L.R. 1998.
Sampson sought the victim's advocate's testimony about the
circumstances that led to this potentially exculpatory e-mail. The trial court
denied this motion, determining that the advocate's testimony was not necessary.
Detective Stangeland, testified about her knowledge of the e-mail's substance.
She stated that she knew nothing besides what the e-mail stated. And, in their
respective testimony, neither L.R. 1998 nor her mother remembered L.R. 1998
13 No. 73805-4-1/14
recanting her story. The probative value of the advocate's testimony was likely
minimal, because the jury found Sampson not guilty of the only charged crime
that involved L.R. 1998 without the benefit of it.
And, under RCW 5.60.060(7), an advocate may not testify about
communication between the advocate and the sexual abuse victim. Therefore,
the advocate would not have been able to testify about what L.R. 1998 had told
her that led to the message. The trial court did not abuse its discretion in
declining to compel the victim advocate's testimony.
IV. Replay of Child Testimony
Sampson contends that the trial court erred in allowing the jury to review
video exhibits.
The jury requested to review three video exhibits. Two videos were of
L.R.'s interviews with a child interview specialist. One video was of L.H.'s
interview with the child interview specialist. In the videos, both children allege
that Sampson engaged in sex acts with themselves and others. Over defense
counsel's objection, after hearing arguments from both sides, the trial court
granted the jury's request:
I'm going to grant that request and we'll play those videos for you. I want to let you know that we're just going to play the three videos straight through, we're not going to go back and forth or rewind or anything like that. You're not to talk to each other while the videos are playing.
After it's all done, you can go back in the jury room and talk about it as much as you want, because that's part of your deliberative process, but we're just going to provide -- play the videos for you and that will be it.
14 No. 73805-4-1/15
We review a trial court's decision to replay testimony for the jury during
deliberations for abuse of discretion. State v. Morgensen, 148 Wn. App. 81, 86-
87, 197 P.3d 715 (2008). CrR 6.15(0(1) provides that:
In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence.
Viewed in light of the principle that a jury must remain impartial as it determines
the facts, reviewing testimony during deliberations is disfavored. State v. Koontz,
145 Wn.2d 650, 654, 41 P.3d 475 (2002).
Sampson argues that the same concerns that led the court to reverse in
Koontz are also present in this case. In Koontz, our Supreme Court held that
replaying video of trial testimony requires trial courts to apply protections against
"undue emphasis" that consider the effect and manner of video replay. 145
Wn.2d at 657. Specifically, the Koontz video exposed views of the witnesses'
demeanor not previously available to the jury. Id. at 660. The jury was looking
for the witnesses'"facial expressions and whatnot." Id. at 659.
The court held that replaying the video of trial testimony in this manner
was error. Id. at 660. It reasoned that courts should balance the need to replay
the testimony with procedural safeguards, such as limiting the amount of times
the jury can review the video, to prevent juries from overemphasizing the
evidence. Id. at 657. Koontz instructs that "the unique nature of videotaped
testimony requires trial courts to apply protections against undue emphasis that
consider both the effect and the manner of video replay." Id.
15 No. 73805-4-1/16
But, Koontz is clearly distinguishable.6 Most notably, the Koontz court
explicitly stated that replaying videotaped trial testimony should not be treated
under the same standard as an admitted sound or video exhibit. Id. at 659. And,
the evidence at issue here was an admitted exhibit, not videotaped trial
testimony. And, the trial court allowed the jury to review the testimony only once,
outside the jury room, without discussion while the videos were being played.
The circumstances here were different than in Koontz.
We hold that the trial court did not abuse its discretion in replaying the
V. Cumulative Error
Sampson also argues that the foregoing errors amount to cumulative
error. Cumulative error warrants reversal when there have been several trial
errors that standing alone may not be sufficient to justify reversal, but when
combined may deny a defendant a fair trial. State v. Grieff, 141 Wn.2d 910, 929,
10 P.3d 390 (2000).
The only errors we find are the two harmless evidentiary errors. They
went to different issues. The error relating to Stangeland's testimony went to
consciousness of guilt. And, it was inconsequential given that Sampson himself
6 Sampson also cites United States v. Binder, where child credibility was also at issue. 769 F.2d 595, 600-01 (9th Cir. 1985), overruled on other grounds la United States v. Morales, 108 F.3d 1021 (9th Cir. 1997). But, the Binder court found an abuse of discretion precisely because the court did not take critical precautions. Id. at 601. First, some communications between the judge and jury occurred without consulting counsel or the defendant. Id. at 598. And, the videotape was replayed in the privacy of the jury room. Id. The court also allowed the jury to skip preliminary portions of the tape. Id. None of these circumstances are present here. Binder is distinguishable.
16 No. 73805-4-1117
admitted to attempting to pay Thornton and destroy a laptop. The error relating
to the children's hearsay in their out-of-court interviews went to credibility. But,
the children's testimony in court allowed the jury to assess their credibility
directly, independent of whether their prior hearsay statements were factually the
same. The isolated hearsay statements, when combined with Stangeland's
hearsay testimony, do not rise to cumulative error. Their cumulative effect did
not deprive Sampson of a fair trial.
VI. Equal Protection
Sampson was sentenced to life in prison due to his status as a persistent
offender. When a prior conviction is an element of a crime rather than a basis for
aggravating a sentence, the State must prove its existence to a jury beyond a
reasonable doubt. State v. Langstead, 155 Wn. App. 448, 453, 228 P.3d 799,
(2010). Sampson argues that his sentence violates equal protection, because
his prior offenses were not elements, but rather "sentencing factors" that needed
to be proven by only a preponderance of evidence. He contends that we should
apply strict scrutiny to the persistent offender sentencing factor. And, he argues
that, under either strict scrutiny or rational basis, the classification violates equal
protection.
But, this court has rejected virtually identical arguments on multiple
occasions. For example, in Lanqstead, this court held that a persistent offender
life sentence satisfied rational basis review. Id. at 456-57; see also State v.
Witherspoon, 171 Wn. App. 271, 305, 286 P.3d 996 (2014)("[T]here is a rational
basis for distinguishing between 'persistent offenders' and 'nonpersistent
17 No. 73805-4-1/18
offenders.' "). In accord with these previous decisions, we hold that Sampson's
persistent offender sentence does not violate equal protection.
VII. Costs on Appeal
Sampson asks that we deny any request for costs on appeal because the
trial court deemed him indigent. At oral argument, the State withdrew its
opposition to Sampson's request to waive costs due to indigency. We therefore
hold that, due to Sampson's indigency, the State is not entitled to costs on
appeal.
We affirm.
WE CONCUR:
Irsckti (ICJ f