State Of Washington, V. Ebrima Jobe

• Court: Court of Appeals of Washington
• Decided: March 24, 2025
• Docket: 84329-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84329-0-I

Respondent, DIVISION ONE

v. ORDER DENYING MOTION FOR RECONSIDERATION EBRIMA JOBE, AND WITHDRAWING AND SUBSTITUTING OPINION Appellant.

Appellant Ebrima Jobe filed a motion for reconsideration of the opinion

filed on December 4, 2024 in the above case. A majority of the panel has

determined that the motion for reconsideration should be denied. The panel has

also determined that it should withdraw the opinion and file a substitute opinion.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is denied, the opinion filed on

December 4, 2024 is withdrawn, and a substitute opinion shall be filed.

FOR THE COURT: IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84329-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION EBRIMA JOBE,

Appellant.

CHUNG, J. — Ebrima O. Jobe was convicted of rape in the second

degree. Jobe challenges his conviction on several grounds. He claims the trial

court erred in concluding that records of the victim’s communications with a

University of Washington (UW) victim advocate were protected from disclosure

based on a statutory privilege for sexual assault advocates and that UW did not

have to produce records relating to a different allegation of sexual assault made

by K.A. against a student. He also challenges as misconduct statements made

by the prosecutor during closing and another statement referring to DNA

evidence. He also challenges the court’s admission of his statements to a

detective, a community custody condition in his sentence requiring him to submit

to urinalysis and breath analysis, and the imposition of a victim penalty

assessment (VPA) and a DNA collection fee.

We affirm Jobe’s conviction. However, we hold that the urinalysis

condition is unconstitutional because it is not narrowly tailored to Jobe’s crime of No. 84329-0-I/2

conviction and remand to the trial court for revision. We accept the State’s

concessions and remand to the trial court to strike the breath analysis condition,

the VPA, and the DNA fee from the sentence.

FACTS

In July 2022, Ebrima O. Jobe was convicted by a jury of one count of rape

in the second degree in violation of RCW 9A.44.050(1)(a). Jobe’s conviction

arose from events that occurred on the morning of June 29, 2019.

Jobe, an Uber driver, accepted a pick-up request from K.A. for a ride from

the Capitol Hill neighborhood of Seattle, Washington to her home in the

University District. After initially entering Jobe’s car and sitting in the back seat,

K.A. testified that she moved up to the front seat to charge her cell phone.

According to K.A., she and Jobe initially engaged in “small talk,” which escalated

to Jobe asking “more personal questions . . . like where you from . . . do you

have a boyfriend; what kind of men do you like.” Jobe disregarded K.A.’s

requests to be dropped off at a stop sign across from her house and insisted he

would drop her off in the alleyway behind her house. According to K.A., upon

driving into the alleyway Jobe began complimenting her and attempted to “put

[her] hand down his pants.” When the car came to a stop, K.A. unbuckled her

seatbelt and was going to pick her phone up from the floor, where it had fallen,

when Jobe got out of his seat and tried to get on top of her. K.A. stated that she

told Jobe to get off of her but that he told her they could “have fun” and pinned

her arms down and sat on top of her so her legs were in between his and

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immobilized. Jobe then put the seat back, held K.A.’s arms down, pulled her shirt

up and pulled her bra down.

K.A. testified that Jobe began touching and kissing her breasts and tried to

take off her pants, which prompted her to try to push him off of her. Jobe then

removed her underwear and digitally penetrated her vagina for a couple of

minutes. According to K.A., Jobe exposed his penis and began touching her

stomach and outside of her vagina with it, at which point she began screaming

for him to get off and that she did not want to participate. K.A. testified that Jobe

did not penetrate her vagina with his penis, but did so with his fingers. K.A. stated

that Jobe then “stopped . . . resisting me trying to push him off and finally got off

of me,” at which point she pulled up her pants, collected her belongings and ran

to her house. Crying and sobbing, K.A. entered her house, ran upstairs and woke

up her roommate, and said, “I was attacked by my Uber driver; can you call the

police?” The roommate then called the police on K.A.’s behalf.

Contrary to K.A.’s version of events, Jobe testified to a consensual

encounter. According to Jobe, K.A. was talking to two men before she entered

his Uber, so he asked if she was in a relationship with any of them and she

responded that she was not. Jobe testified that he had asked her what type of

men she likes and that she explained her preferences. Jobe stated that he

commonly talks with passengers “to make everybody happy,” and that in this

instance, K.A. seemed to engage in his conversation. They continued conversing

until he reached the destination, at which point K.A. gave Jobe her phone

number. Jobe complimented K.A. as she began to exit the vehicle, which

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prompted her to close the door and remain in the Uber. Jobe testified that K.A.

directed him to drive into the alleyway and that she began to rub his thigh, he

attempted to deflect it, but she persisted. Jobe said they then began kissing, he

rubbed and kissed her breasts, and K.A. began to rub his penis from inside his

pants. Jobe testified that at no point did he remove his pants or touch K.A.’s

vagina. Further, Jobe stated that K.A. asked him if he had any condoms, to which

he replied that he did not. Jobe explained that he stopped because he did not

want to have sex without a condom. After stopping their encounter, K.A. collected

her belongings and exited his vehicle. Jobe testified that K.A. was “an active

participant” throughout the entire encounter.

Later that day, Jobe’s wife woke him up because two officers were at their

house and wanted to talk with him. Jobe spoke with the two officers but did not

tell them that he kissed K.A. or did anything with her while in the alley. Jobe

admitted at trial that he initially lied to officers and did not tell them about his

physical contact with K.A. because he felt ashamed for engaging in such conduct

outside of his marriage.

During discovery, Jobe attempted to subpoena the records of a University

of Washington (UW) victim advocate, Victoria Adams, on the basis that K.A. had

discussed the alleged rape with Adams. Initially, the trial court ordered UW to

produce the records. However, UW filed a motion to reconsider the trial court’s

order, arguing that the records are confidential and that Jobe had not met his

burden of making a “particularized showing” that identified the information he

sought. Subsequently, the trial court granted UW’s motion to reconsider and

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denied Jobe’s request for a subpoena to compel Adams’s records for an in

camera review.

Jobe also attempted to subpoena the records related to another allegation

of sexual assault (UW incident) made in 2018 by K.A., seeking to demonstrate

“either or both [K.A.’s] credibility and propensity to make false allegations, or a

possible explanation for her to have responded inappropriately and otherwise-

inexplicably to an innocent interaction with Mr. Jobe.” The UW incident occurred

between K.A. and another UW student. The trial court reviewed the records

relating to the UW incident in camera and determined that there was no

discoverable material therein and, accordingly, sealed the records.

The jury convicted Jobe of rape in the second degree. The trial court

sentenced Jobe to a standard range sentence of 78 months of incarceration and

36 months of community custody. The trial court also imposed a $500 VPA and a

$100 DNA collection fee. Additionally, the trial court imposed conditions including

a prohibition on the possession or consumption of controlled substances along

with a condition permitting random urinalysis and breath analysis.

Jobe timely appeals.

ANALYSIS

Jobe challenges the following on appeal: (1) the trial court’s decision

refusing to review a sexual assault advocate’s records in camera; (2) the trial

court’s decision after in camera review refusing to disclose records relating to a

separate sexual assault allegation made by K.A.; (3) the prosecutor’s statement

during closing argument that injuries like K.A.’s do not arise from consensual

5 No. 84329-0-I/6

sexual contact; (4) the trial court’s decision to impose breath analysis and

urinalysis testing conditions; and (5) the trial court’s imposition of the VPA and a

DNA collection fee. In a statement of additional grounds (SAG), he also claims

the prosecutor’s reference to DNA evidence was misconduct and challenges the

court’s admission of his statements to law enforcement.

I. Sexual Assault Advocate Records

Jobe argues that the trial court erred by refusing to review Adams’s

records in camera because the RCW 5.60.060(7) privilege for sexual assault

advocates does not apply to Adams. He further argues that even if Adams’s

records are privileged, he made a “plausible showing” that the records contain

evidence that is material and favorable to his defense.

A. RCW 5.60.060(7) Sexual Assault Advocate Privilege

RCW 5.60.060 defines who may be subject to examination for

communications between two privileged parties. Specifically, a “sexual assault

advocate may not, without the consent of the victim, be examined as to any

communication made between the victim and the sexual assault advocate.” RCW

5.60.060(7). A sexual assault advocate is defined as any

[e]mployee or volunteer from a community sexual assault program or underserved populations provider, victim assistance unit, program, or association, that provides information, medical or legal advocacy, counseling, or support to victims of sexual assault, who is designated by the victim to accompany the victim to the hospital or other health care facility and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

6 No. 84329-0-I/7

RCW 5.60.060(7)(a). 1

The proper interpretation of a statute is a matter of law reviewed de novo.

State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). The purpose of

statutory interpretation is to determine legislative intent in a manner as to give

effect to that intent. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d

80, 91, 392 P.3d 1025 (2017). A reviewing court ceases its inquiry if the plain

language of the statute has only one interpretation. In re Adoption of T.A.W., 186

Wn.2d 828, 840, 383 P.3d 492 (2016). This analysis may consider the statutory

scheme. State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226,

245-46, 88 P.3d 375 (2004). Plain meaning is understood within “the context of

the entire act as well as any ‘related statutes which disclose legislative intent

about the provision in question.’ ” In re the of Dependency of Z.J.G., 196 Wn.2d

152, 163, 471 P.3d 853 (2020) (quoting Jametsky v. Olsen, 179 Wn.2d 756, 762,

317 P.3d 1003 (2014)). Jobe makes two arguments as to why the court should

reject the State’s contention that Adams’s records are subject to the RCW

1 The State cites to RCW 28B.112.030, which defines the scope of confidentiality that

applies to communications between a campus-affiliated advocate and the victim. This chapter provides that communications between the victim and the campus-affiliated advocate are confidential and “are not subject to public inspection . . . unless (a) [t]he survivor consents to inspection or copying; or . . . (d) [a] court of competent jurisdiction mandates that the record be available for inspection or copying.” RCW 28B.112.030(1), (2). However, this statute addresses public disclosure of such records and is distinct from the privilege statute at issue.

7 No. 84329-0-I/8

5.60.060(7) privilege. 2 First, Jobe argues that Adams’s affiliation with the UW

Police Department (UWPD) means that she is not a “sexual assault advocate”

within the meaning of RCW 5.60.060(7). Second, Jobe argues that Adams is not

a “sexual assault advocate” covered by the privilege because the primary

function of her role within UW Student Life is inconsistent with a sexual assault

advocate. We disagree on both grounds.

1. Adams’s Association with UWPD

Jobe argues that Adams cannot be a sexual assault advocate within the

meaning of RCW 5.60.060(7) because she is physically housed in the UWPD

office and uses a UWPD e-mail. He claims that the trial court’s initial hesitation

about Adams’s relation to a law enforcement agency is an indicator that her work

is outside the scope of the RCW 5.60.060(7) privilege. Jobe emphasizes the

relevant statutory language referencing “community”-based programs and

asserts this conflicts with Adams’s affiliation with a law enforcement agency, a

governmental entity.

2 In briefing, Jobe argued that any concern that in camera review would stymie a person’s

ability to meet with a sexual assault advocate was “misplaced.” But at oral argument, Jobe claimed more specifically that the trial court abused its discretion by applying the wrong standard to determine whether to review Adams’s records in camera because it weighed the “chilling effect” that in camera review would have on a victim’s access to assistance. We do not consider claims raised for the first time during oral argument “where there is no argument presented on the issue and no citation to authority provided.” State v. Olson, 126 Wn.2d 315, 319-20, 893 P.2d 629 (1995). But in any case, here, the record shows that the trial court applied the correct standard to evaluate whether Jobe established materiality. In its order denying in camera review of Adams’s records the trial court stated “[t]his case presents a clash of two competing interests—the rights of a defendant to an effective defense and the rights of a sexual assault victim to confidentiality and privacy.” However, it then went on to explain it believed the sexual assault advocate privilege applied and that Jobe had the burden of showing materiality for “records [that] are likely to have information that is exculpatory. . . . [but] [t]he Defendant fails in this burden. . . . [because] the Defendant has speculation or suspicion as to what the records could contain, but falls short of showing the records contain impeachment materials or exculpatory evidence.”

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The State responds that nothing in RCW 5.60.060(7) explicitly bars “units”

that are housed within police agencies from using the protection of this privilege.

As the State notes, this provision is different from the statutory language in RCW

5.60.060(8)(a) defining a “domestic violence advocate,” which expressly

excludes anyone who is employed by or directly supervised by a law

enforcement agency. When specific language is used in one instance but not

another, “[a] difference in legislative intent is evidenced. We assume the

legislature means exactly what it says.” In re Forfeiture of One 1970 Chevrolet

Chevelle, 166 Wn.2d 834, 842, 215 P.3d 166 (2009). And the State asserts that

because the legislature did not explicitly incorporate the language excluding

employment or supervision by law enforcement agencies in RCW 5.60.060(7),

this exclusion does not apply to that provision.

We agree with the State. Here, even if Adams’s e-mail and physical office

are within UWPD, the evidence shows that Adams is independent from the

UWPD and her records are not accessible to law enforcement. Also, her work

relevant to this case focused on “trauma-informed support,” which is within the

statutory definition of “sexual assault advocate” as she provided “information,

medical or legal advocacy, counseling, or support to victims of sexual assault.”

RCW 5.60.060(7)(a). Jobe’s argument that she is not a sexual assault advocate

within the meaning of the statute is unavailing.

2. Role of Sexual Assault Advocate

Jobe next argues that even absent Adams’s affiliation with UWPD, the

State failed to show that Adams is affiliated with a qualifying program, for which

9 No. 84329-0-I/10

RCW 5.60.060(7) privilege could attach. Jobe points to the fact that Adams’s job

is classified under “UW Student Life,” which is not a “community sexual assault

program,” or a “victim assistance unit, program, or association,” but rather an

educational institution that provides various services to students. Jobe seems to

suggest that because Adams is not “part of a specific division, unit, program, or

association designated specifically to provide sexual assault advocacy services,”

she is not a qualified sexual assault advocate.

The State argues that this is an incorrect reading of the statute because

nothing in the statutory language requires sexual assault advocacy “to be a unit

or program’s exclusive function.” Nor does the statutory language mandate the

sexual assault advocate to be part of a larger defined “program” or “unit,” an

interpretation the State characterizes as “overliteral” and contrary to the

legislature’s intent. The State contends that “community sexual assault

program[s]” are designed to provide “community-based social services” which

would logically include “sexual assault advocacy.” Therefore, a sexual assault

advocate working under the auspices of a community-based sexual assault

program that is part of a larger social service agency is included in the protection

of RCW 5.60.060(7), Again, we agree with the State. The statutory language of

RCW 5.60.060(7) defines “sexual assault advocate” broadly and includes “the

employee or volunteer from a community sexual assault program or underserved

populations provider, victim assistance unit, program, or association, that

provides information, medical or legal advocacy, counseling, or support to victims

of sexual assault” or is designated by the victim to accompany them to receive

10 No. 84329-0-I/11

health care or to proceedings concerning the alleged assault. Consequently, the

list of persons and entities in the first part of the definition is limited only by the

functions of the entity; in other words, the entity must “provide[] information,

medical or legal advocacy, counseling, or support” or be designated to

accompany the victim to certain appointments. Neither the language nor the

purpose of the statute support interpreting it to require that the advocate be

working with a program that provides only services to sexual assault survivors.

We conclude that under a plain language reading of RCW 5.60.060(7),

Adams was providing the type of service defined by the statute and, therefore,

even if the program of “UW Student Life” also provided other services, Adams

would qualify for the protection of the statutory privilege therein. Therefore, the

sexual assault privilege applies to Adams’s records.

B. Materiality

Jobe argues that even assuming Adams’s records were privileged and

subject to protection under RCW 5.60.060(7), the trial court should have

conducted an in camera review to determine whether the records nevertheless

should be disclosed. We review a trial court’s decision about whether to conduct

an in camera review of privileged records for an abuse of discretion. State v.

Gregory, 158 Wn.2d 759, 791, 147 P.3d 1201 (2006), as corrected (Dec. 22,

2006), overruled by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014). A

trial court abuses its discretion when “no reasonable person would adopt [its]

view.” State v. Olmedo, 112 Wn. App. 525, 530, 49 P.3d 960 (2002).

11 No. 84329-0-I/12

Although protections for certain types of sensitive information carry great

weight, they are not so great as to prevent disclosure in all circumstances.

Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

Courts use in camera review to appropriately balance the State’s interest in

confidentiality and the defendant’s right to exculpatory evidence. Id. at 61. Due

process requires an in camera review of otherwise privileged or confidential

records when the defendant adequately demonstrates that the records contain

material evidence. Gregory, 158 Wn.2d at 791. This is a threshold matter that

requires the defense to make a “ ‘plausible showing’ that the information will be

both material and favorable to the defense.” Id. (citing Ritchie, 480 U.S. at 58

n.15). 3 Material evidence is that which has a reasonable probability of impacting

the outcome of the case. Id. A “reasonable probability is probability sufficient to

undermine confidence in the outcome.” Id.

Further, in camera review is justified when the defendant provides a

nonspeculative basis for seeking the records. State v. Cleppe, 96 Wn.2d 373,

382, 635 P.2d 435 (1981). This requires the trial court to make its determination

while acknowledging “the difficulty of explaining in a vacuum why the testimony is

crucial.” Id. Any doubt regarding the records should be resolved in favor of

conducting an in camera review. Id. However, a claim asserting that privileged

files may “lead to other evidence or may contain information critical to the

3 The court in Gregory explained that “particularized showing” and “plausible showing”

were not conflicting standards; rather, both required “some showing of materiality.” 158 Wn.2d at 792 n.11 (citing State v. Diemel, 81 Wn. App. 464, 468, 914 P.2d 779, rev. denied, 130 Wn.2d 1008, 928 P.2d 413 (1996)).

12 No. 84329-0-I/13

defense is not sufficient to compel a court to make an in camera inspection.”

State v. Diemel, 81 Wn. App. 464, 469, 914 P.2d 779 (1996).

Jobe contends that he met his burden of making a nonspeculative and

“plausible showing” that Adams’s records pertaining to her discussions with K.A.

were material. In his discovery motion, Jobe cited to the investigating police

officer’s statement suggesting that Adams was in contact with the officers.

Specifically, Jobe asserts that the officer’s note that “Adams. . . . advised that

[K.A.] was having some difficulty in determining how far in the prosecution she

wanted to participate,” indicated K.A.’s “confidence and credibility in making the

allegations of rape, and is a nonspeculative basis to conclude that the records

may contain exculpatory evidence.”

Jobe relies on Gregory as an example of a case where the court

determined that in camera review was necessary despite privilege where the

credibility of the witness-victim was likely to impact the outcome of the trial. In

Gregory, the defendant sought to show that the alleged victim was working as a

prostitute at the time of the incident and had consented, and thus sought to admit

the alleged victim’s Department of Health and Human Services (DSHS)

dependency files “to determine whether the files contained any evidence of

recent (and therefore relevant) evidence of prostitution.” 158 Wn.2d at 779-80.

There, the Gregory court held that the trial court should have reviewed the

dependency records in camera because it was reasonable to believe that DSHS

would have documented any activity related to prostitution in its files, and that

this could have led to other evidence that the alleged victim engaged in

13 No. 84329-0-I/14

prostitution near the time of the incident with the defendant. Id. at 795. Jobe

argues that like in Gregory, the absolute contents of Adams’s records is

unknown, but K.A.’s uncertainty about participating in his prosecution could be

attributable to her “lack of confidence in Mr. Jobe’s culpability.” As a result, Jobe

contends that he sufficiently showed materiality because K.A. had a reason that

made her hesitant to help prosecute him, which was “likely to be explicitly stated

in her communications with Adams.”

The State distinguishes Gregory, as DSHS maintains case-specific

records in which information pertaining to the witness-victim’s recent prostitution

would have been documented, whereas here, Adams does not maintain case-

specific records and there is no evidence to suggest that she discusses specific

details of assaults by e-mail with victims. The State compares this case to

Diemel, in which the alleged victim began meeting with a therapist following the

alleged rape and the defendant sought disclosure of the therapist’s records

through an in camera review claiming that the victim may have discussed certain

topics with her therapist. 81 Wn. App. at 466. There, the court held that the

defendant’s request for in camera review was too speculative, explaining that

“[t]he fact that she might have discussed the circumstance of her ‘consent’ with

the therapist is not sufficient [alone] to justify the intrusion of inspection.” Id. at

469.

We conclude that Jobe’s argument that K.A. may have been hesitant to

participate in his prosecution is speculative and does not show the materiality of

Adams’s records. Unlike the defendant in Gregory, 158 Wn.2d at 795, 798, Jobe

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has not demonstrated a likelihood that Adams possesses any case-specific notes

implicating consent or details of the incident that are material to Jobe’s defense.

As the State notes, K.A.’s indecision could be attributable to an alleged victim’s

feelings of trauma, shame, embarrassment, and fear of retaliation. As in Diemel,

81 Wn. App. at 469, the possibility that K.A. may have discussed consent with

Adams is too speculative. Further, K.A. testified at trial and defense was able to

cross-examine her, so Jobe had the opportunity to ask about her hesitancy and

attack her credibility.

Therefore, because Jobe has failed to demonstrate that Adams’s records

contain evidence material to his defense, we affirm the trial court’s decision not to

conduct an in camera review.

II. Records of Other Sexual Assault Allegation by K.A.

The trial court conducted an in camera review and determined that the

UW incident records did not include discoverable or material information and

sealed the records to uphold K.A.’s privacy interests. Jobe asks that we review

the sealed records to determine whether the trial court abused its discretion in

refusing to disclose the records. Jobe further argues that if we determine that the

trial court abused its discretion in limiting disclosure, we should reverse his

conviction because the error was not harmless beyond a reasonable doubt. The

State acknowledges that Jobe is entitled to appellate review of the sealed

records, but contends that if we determine that nondisclosure was an error, any

error was harmless.

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On appeal, an appellate court reviews sealed transcripts to determine

whether the court abused its discretion in refusing to disclose records that were

subject to in camera review. State v. Casal, 103 Wn.2d 812, 822-23, 699 P.2d

1234 (1985). The State’s duty to disclose exculpatory information is ongoing,

even if the information was previously “deemed immaterial.” Ritchie, 480 U.S. at

60. 4

Jobe’s reason for seeking the records for the UW incident was that they

were likely material and necessary to show “either or both [K.A.’s] credibility and

propensity to make false allegations, or a possible explanation for her to have

responded inappropriately and otherwise-inexplicably to an innocent interaction

with Mr. Jobe.” But after reviewing the sealed records pertaining to the UW’s

investigation and adjudication of a prior sexual assault allegation made by K.A.,

we conclude there is no information that is discoverable or material. We hold that

the trial court did not abuse its discretion by declining to disclose the sealed

records.

III. Prosecutorial Misconduct

Jobe challenges as misconduct the prosecutor’s closing statement that

“[c]onsensual sexual contact does not result in bruising on the lips, bruising on

the shoulder, bruising on the arm [or] in injuries to the vagina and the perineum.”

He argues the statement was improper and prejudicial because the prosecutor

4 If we determine that evidence should have been disclosed, then we must evaluate

whether any error was harmless. Gregory, 158 Wn.2d at 795. However, an erroneous refusal to conduct in camera review may be sustained if the reviewing court determines that “ ‘nondisclosure was harmless beyond a reasonable doubt.’ ” Id. at 797-98 (quoting Ritchie, 480 U.S. at 58). When analyzing if nondisclosure was harmless beyond a reasonable doubt it is necessary to determine whether the defense knew of the information or with reasonable diligence could have discovered it. Id. at 798.

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did not present evidence to support this proposition, but rather appealed to the

“passions and prejudices” of the jury. The State posits that the statements were

neither improper nor prejudicial. We agree with the State.

On appeal, we review alleged prosecutorial misconduct under an abuse of

discretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014).

A court will reverse if the defendant can demonstrate that the prosecutor’s

conduct was improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675,

257 P.3d 551 (2011). A reviewing court must consider the impact of the

prosecutor’s alleged improper conduct in the full context of the trial. State v.

Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). A review of the totality of the

trial includes evidence entered in “ ‘the context of the total argument, the issues

in the case, the evidence addressed in the argument, and the instructions given

to the jury.’ ” State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting

State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). A prosecutor who

refers to evidence not included in the record and who “appeals to passion and

prejudice” has acted improperly. Fisher, 165 Wn.2d at 747.

Prosecutors “ha[ve] wide latitude to argue reasonable inferences from

evidence, including evidence respecting the credibility of witnesses.” State v.

Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). However, prosecutors are

limited to making arguments based on evidence admitted in the record. State v.

Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021); see also State v. Kovalenko,

30 Wn. App. 2d 729, 749, 546 P.3d 514 (2024) (confirming that prosecutors must

not make arguments that are not sustained by the record). A prosecutor must

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also be mindful to avoid using the power of their position to influence the jury

because “of the possibility that the jury will give special weight to the prosecutor’s

argument.” In re the Pers. Restraint of Glasmann, 175 Wn.2d 696, 706, 286 P.3d

673 (2012) (quoting AM. BAR ASS’N, STANDARDS FOR CRIMINAL JUSTICE std. 3-5.8

(2d ed. 1980)). However, a prosecutor may comment on a witness’s veracity as

long as a personal opinion is not expressed and as long as the comments are not

intended to incite the passion of the jury. State v. Rodriguez-Perez, 1 Wn. App.

2d 448, 460, 406 P.3d 658 (2017).

Here, during closing argument, the prosecutor discussed the physical

evidence, first, pointing to the evidence of amylase, a protein commonly found in

saliva, that was present along with Jobe’s DNA in K.A.’s right breast swab and

her perineal vulvar swab. The prosecutor then said, “That physical evidence not

only proves sexual contact, but it proves that [K.A.] and her testimony was

credible and that Mr. Jobe’s was not.” He continued discussing other physical

evidence in the form of injuries documented by a nurse on a “traumagram,” 5

including bruising on the lips, shoulder, and arm; a layer of skin removed from

the vulva; and two scratches or abrasions near the perineum. The prosecutor

then made the following statement:

Those injuries testified to by Nurse Bearbow and documented on the traumagram is physical evidence that proves Mr. Jobe used force. He didn’t just touch her, but he was using force. Consensual sexual contact does not result in bruising on the lips, bruising on the shoulder, bruising on the arm. Consensual sexual contact does not result in injuries to the vagina and the perineum.

5 The prosecutor further described a traumagram as “a diagram of a person’s body where

she is writing down the injuries that she sees, how big they are, and what they look like.”

18 No. 84329-0-I/19

Jobe’s counsel immediately objected to the prosecutor’s remarks as being

outside the scope of the evidence, not a reasonable inference, and not accurate.

The trial court overruled the objection, stating, “For the jury to determine.”6

Jobe states that he “has no quarrel with the prosecution pointing to K.A.’s

injuries to argue that the injuries corroborate her claim that the encounter was

nonconsensual.”7 But he maintains that the prosecutor’s statement was improper

because it was not a “reasonable inference to draw from the injuries” and was an

inaccurate characterization because such injuries could arise from consensual

sexual activities carried out “in a cramped space.”

As Jobe points out and the State concedes, no expert or other witness

provided explicit testimony that consensual sexual contact would not result in

bruising to the mouth, arms, vulva, or perineum. 8 The State nevertheless asserts

that given that the jury had to assess “two incompatible narratives,” “[t]he

prosecutor’s broader point was that K.A.’s injuries made her version of events

more credible.”

6 Therefore, the heightened standard required to establish prosecutorial misconduct

when the defendant has not objected at trial does not apply. See Lindsay, 180 Wn.2d at 430 (explaining that defendants who fail to object to or request a curative instruction at the time of the misconduct waive the issue absent the conduct being “so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice”). 7 Thus, Jobe does not argue explicitly that the State improperly vouched for K.A.’s

credibility. “Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness’s testimony.” State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 (2010). 8 Jobe analogizes to State v. Levy-Aldrete, No. 52733-2-II, slip op. at 13 (Wash. Ct. App.

March 30, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2052733-2- II%20Unpublished%20Order.pdf. He argues that as in Levy-Aldrete, the prosecution made a “blanket assertion . . . [that] was not supported by any evidence adduced at trial and is not a reasonable or accurate inference to draw without any such evidence on this subject.” We do not discuss unpublished cases unless necessary for a reasoned decision, GR 14.1(c), which is not the case here.

19 No. 84329-0-I/20

Here, the context shows that prior to the contested statements, the

prosecutor reviewed the physical evidence, including the right breast swab and

the perineal vulvar swab, which both showed the presence of amylase and

Jobe’s DNA. He argued that this evidence “not only proves sexual contact, but it

proves that [K.A.] and her testimony was credible,” and that Jobe’s was not. The

prosecutor continued by reviewing other physical evidence of injuries

documented by the nurse who examined K.A., and then made the statements at

issue, asserting that K.A.’s injuries were evidence of the use of force. After Jobe

objected, and the court ruled it was “[f]or the jury to determine,” the prosecutor

repeated, “Consensual sexual contact does not result in injuries to the vagina or

injuries to the perineum.” He then continued, “That evidence is proof of a

struggle. Proof that Mr. Jobe used force . . . . It’s also proof that . . . [K.A.’s]

testimony was credible and that Mr. Jobe’s was not.” The prosecutor then

discussed “[t]he third piece of physical evidence,” K.A.’s underpants, which did

not have DNA but did have blood. He urged the jury, “you can conclude from that

evidence the blood is a result of the injuries to her genitals caused by Mr. Jobe.”

Even if the prosecutor did not similarly preface the statement at issue with

words such as “you can conclude from that evidence,” the context was a

discussion of the physical evidence and the inferences to be drawn therefrom.

Immediately preceding the statement, the prosecutor gave a detailed recounting

of the injuries documented by the nurse, so the statement suggested that from

the injuries, the jury could infer lack of consent. Immediately after the statement

at issue, the prosecutor stated, “[t]hat evidence is proof of a struggle,” that Jobe

20 No. 84329-0-I/21

used force, and that K.A. was credible. And after discussing the three categories

of physical evidence—the DNA, the documented injuries, and blood on K.A.’s

underpants—the State concluded, “The physical evidence proves the elements

of this crime.”

Even if the argument was improper, we could not conclude that the

statement was so prejudicial as to warrant a new trial. Once improper conduct is

shown, a defendant must still demonstrate the conduct was prejudicial. Monday,

171 Wn.2d at 675. A prosecutor’s conduct is prejudicial when “ ‘there is a

substantial likelihood the misconduct affected the jury’s verdict.’ ” Id. at 675

(quoting State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007)).

Jobe argues that because consent was the primary question at trial, the

prosecution’s assertion that consensual sexual contact does not cause the types

of injuries K.A. sustained was particularly prejudicial to his primary defense. He

also argues that other than K.A.’s testimony, there was a lack of evidence

suggesting the encounter was nonconsensual; therefore, the prosecutor’s

statements were substantially likely to influence the jury.

In the present case, the allegedly prejudicial statements were brief and all

occurred in one portion of the prosecutor’s initial closing argument. Further, the

statements were not repeated in the State’s rebuttal argument. Jobe was able to

respond in his closing argument about the appropriate inferences from the

physical evidence, including regarding whether the contact was consensual. For

example, he characterized K.A.’s injuries as being barely noticeable and “very

21 No. 84329-0-I/22

minor.” He also argued the bruising and other injuries could have had some other

origin.

The jury also heard evidence from several sources supporting the State’s

argument regarding consent. As previously discussed, the prosecutor highlighted

the physical evidence, including the presence of a YSTR profile, a type of DNA

testing focusing on the Y chromosome that is present only in biological males,

which although not definitive, “represented a strong likelihood that Jobe had

touched K.A.’s genitals, something he repeatedly claimed had not occurred.”

Further, in addition to K.A.’s trial testimony, the State noted that her version of

events was corroborated by her actions and demeanor. Immediately upon

leaving Jobe’s car, K.A. ran “screaming and crying into her roommate’s bedroom”

and asked her to call 911. Her statements to her roommate, her father, and the

officers soon after the events were also consistent with her trial testimony that a

nonconsensual sexual assault occurred.

This evidence conflicted with Jobe’s version of events. On direct

examination, Jobe testified that at no point did he remove his pants or touch

K.A.’s vagina, and again on cross-examination, Jobe testified that he only

engaged in “normal kissing” as well as touching and kissing of K.A.’s breasts, but

that he did not touch her vagina or take his penis out of his pants. But Jobe’s

credibility was impeached by, for example, the fact that he initially denied to

police that he had sexual contact with K.A., but after learning that there was DNA

evidence, he changed his story.

22 No. 84329-0-I/23

The State also emphasized in its closing that in addition to the physical

evidence, the jury heard witness testimony, and the jury instructions stated that

the jury was the sole judge of both the credibility of each witness and the weight

to be given to each witness’s testimony. The court also gave the standard

instructions to the jurors that they “are the sole judges of the credibility of each

witness,” “the lawyers’ statements are not evidence,” and to “disregard any

remark, statement, or argument that is not supported by the evidence.” The jury

is presumed to follow the court’s instructions. State v Stenson, 132 Wn.2d 668,

729-30, 940 P.2d 1239 (1997).

Therefore, even if the prosecutor’s statements were improper, there was

not a substantial likelihood that they affected the jury’s verdict. There was strong

physical evidence and other evidence corroborating K.A.’s version of events. By

contrast, there was evidence challenging Jobe’s credibility. We conclude the

prosecutor’s statements that consensual sexual conduct does not result in the

type of injuries present in this case were not improper and not prejudicial and

thus not reversible prosecutorial misconduct.

IV. Urinalysis and Breathanalysis Community Custody Condition

Jobe challenges the community custody condition in his sentence that

requires that he “[b]e available for and submit to urinalysis and/or breath analysis

upon request of the CCO and/or chemical dependency treatment provider.” He

argues that the condition is unconstitutional because it has nothing to do with his

crime of conviction.

23 No. 84329-0-I/24

We review the imposition of community custody conditions for an abuse of

discretion and will reverse the conditions when they are manifestly unreasonable.

State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). RCW 9.94A.703

defines the types of community conditions that a trial court is required to impose,

those that are imposed unless waived, and those that the court can

discretionarily impose. A court is also permitted to impose “any crime-related

prohibitions.” RCW 9.94A.703(3)(f). However, a reviewing court must more

carefully review a community custody condition that impedes a fundamental

constitutional right. State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).

The sentencing court imposed a standard condition requiring that Jobe

“[n]ot possess or consume controlled substances except pursuant to lawfully

issued prescriptions.” However, the court did not impose any prohibition on

consuming alcohol. The State concedes that without such a prohibition, there is

no need for breath analysis testing, as such testing is intended to monitor

compliance with prohibitions on alcohol. Thus, the State agrees that the breath

analysis should be stricken from the record. We accept the State’s concession.

Regarding urinalysis testing, Jobe argues that when alcohol and drugs do

not contribute to the underlying offense a trial court is barred from enforcing the

prohibitions on consumption and possession conditions through random

urinalysis testing. Jobe cites State v. Olsen, a case involving the crime of driving

under the influence (DUI), in which our state Supreme Court held that random

urinalysis testing can be a constitutionally permissible way of monitoring DUI

probationers because the testing is “a narrowly tailored monitoring tool imposed

24 No. 84329-0-I/25

pursuant to a valid prohibition on drug and alcohol use.” 189 Wn.2d 118, 134,

399 P.3d 1141 (2017). However, the Olsen court also noted that random

urinalysis testing may not be warranted if there is not an adequate connection to

a validly imposed probation condition. Id.

Indeed, as Jobe notes, this court has distinguished Olsen and concluded

that when a defendant’s conviction is not for a drug- or DUI-related offense and

there is no evidence of a connection between the offenses and drugs, random

urinalysis infringes on a probationer’s privacy interests because the condition is

not “narrowly tailored []or reasonably necessary” to achieve a compelling state

interest. State v. Greer, No. 78291-6-I, slip op. at 21-22 (Wash. Ct. App. Nov. 18,

2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/782916.pdf; State v.

Stark, No. 76676-7-I, slip op. at 13 (Wash. Ct. App. Oct. 15, 2018) (unpublished),

https://www.courts.wa.gov/opinions/pdf/766767.pdf. 9

The State argues that random urinalysis testing is constitutional because it

“merely monitors compliance with another properly imposed condition,” citing

State v. Vant, 145 Wn. App. 592, 603-04, 186 P.3d 1149 (2008). In Vant, the

court held that because the prohibition on use or possession of controlled

substances was authorized by statute, and the random urinalysis condition was

imposed to ensure compliance with the prohibition, the condition was within the

court’s discretion to impose. Id. at 604. The State also relies on State v. Stone, in

which Division Two of this court held that “the trial court did not exceed its

9 Division Two has reached the same conclusion as did Division One in Greer and Stark.

See State v. Rosales, No. 57463-2-II, slip op. at 5 (Wash. Ct. App. Mar. 12, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2057463-2-II%20Unpublished%20Opinion.pdf. We may cite to unpublished decisions when necessary for a reasoned decision. GR 14.1(c).

25 No. 84329-0-I/26

authority when it ordered [the defendant] to ‘submit to urinalysis. . . testing. . . to

verify compliance,’ because the condition regarding illegal drugs [was] valid.” No.

52233-1-II, slip op. at 10 (Wash. Ct. App. Feb. 19, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2052233-1-

II%20Unpublished%20Opinion.pdf.

But Vant’s reasoning was based on the court’s discretion under RCW

9.94A.700(4)(c) to impose a prohibition on controlled substances. The issue here

is not the court’s statutory authority, but whether the condition is constitutional.

Imposing an unconstitutional condition is an abuse of discretion. State v.

Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). In the cases on which the

State relies, Vant and Stone, the defendants did not raise the same constitutional

challenge as Jobe does here. 145 Wn. App. at 603; No. 52233-1-II, slip op. at 6-

7.

The State also cites State v. Preble, No. 38625-2-III, slip op. at 12 (Wash.

Ct. App. Mar. 9, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/386252_unp.pdf, to note that no

Washington court has determined whether urinalysis testing is permissible for a

case involving a sex offense, but does not explain why, if there is no evidence

that drugs or alcohol contributed to the crime, urinalysis testing is narrowly

tailored to enforce a condition in a sentence for rape in the second degree.

We conclude that on the present facts, the urinalysis condition is not

narrowly tailored to Jobe’s crime and therefore infringes on his privacy interests.

26 No. 84329-0-I/27

We remand to the trial court to strike both the breath analysis condition, based on

the State’s concession, and the urinalysis condition from Jobe’s sentence.

V. VPA and DNA Collection Fee

Jobe argues that we should strike the VPA and DNA collection fee

because he is indigent and recent amendments to the relevant statutes bar

courts from imposing such fees on indigent defendants. See RCW 7.68.035(4)

(prohibiting courts from imposing the VPA when the defendant is indigent); LAWS

OF 2023, ch. 449, § 1 (eliminating DNA collection fee). Amendments to statutes

governing legal financial obligations apply retroactively to matters pending on

direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). The

State does not dispute that Jobe is indigent and concedes that the VPA and DNA

collection fee should be stricken. We remand to strike the VPA and DNA

collection fee from Jobe’s judgment and sentence.

VI. Prosecutorial Statement Regarding DNA Evidence

In his SAG, Jobe claims the prosecutor engaged in misconduct by

“misstat[ing] DNA evidence.” While cross-examining Jobe, the prosecutor stated,

“And your DNA was found on her perineal vulvar swab.” Jobe immediately

objected on the basis that this misstated the evidence, because there was no

testimony that it was his DNA, but rather, only that the swab had “YSTR DNA

that could have been of anyone of his patrilineal line.”10 The court responded, “All

right, rephrase the question.” The prosecutor then asked, “There’s no reason why

your DNA should be found on her perineal vulvar swab, right?” Jobe answered,

10 Jobe initially notes that this statement was made in closing, but the record indicates

that it was made on the prosecutor’s cross-examination of him.

27 No. 84329-0-I/28

“He really doesn’t know, but he doesn’t think so.”

On appeal, Jobe again challenges the prosecutor’s first statement about

the DNA as misconduct on the same grounds. Because Jobe objected below, we

review the claim for abuse of discretion. Lindsay, 180 Wn.2d at 430. We will

reverse if the defendant can demonstrate that the prosecutor’s conduct was

improper and prejudicial. Monday, 171 Wn.2d at 675.

Here, we conclude that the prosecutor’s statement that Jobe’s DNA was

found on the perineal vulvar swab was not improper. The Washington State

Patrol forensic scientist testified that “[t]he major component that I determined

from the perineal swab matched that of Mr. Jobe.” She explained that the way

the YSTR testing works, “no one in his paternal lineage could be excluded,”

because such a person—for example, a brother with the same father—would be

expected to have the same YSTR profile. She further explained that the

statistical analysis of the sample revealed that “this partial major profile . . .

[would not] occur more frequently than one in 9,700 male individuals in the U.S.

population.” There was no evidence that anyone else in Jobe’s paternal lineage

would have come in contact with K.A.’s vulva or perineum. Thus, the prosecutor’s

statement that Jobe’s DNA was “found on the swab” referred to the forensic

expert’s testimony that the “major component” from the perineal vulvar swab

“matched” Jobe’s DNA.

The prosecutor’s statement about DNA evidence was not improper, but

even if it were, it was not prejudicial. The statement was a question to Jobe, not

an answer by a witness. And the prosecutor, as directed by the trial court,

28 No. 84329-0-I/29

immediately rephrased the question.

VII. Waiver of Miranda Rights

In his SAG, Jobe additionally challenges the trial court’s decision to admit

his statements to law enforcement as a violation of his Fifth and Fourteenth

Amendment rights. In particular, he contends that his Miranda rights were

violated because as a non-native English speaker, he did not fully understand the

charges against him and did not knowingly, voluntarily and intelligently waive his

Miranda rights.

The Fifth Amendment states that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. CONST. amend. V. Any

person subjected to a custodial interrogation must be advised of the right to

remain silent pursuant to the federal and state constitutions. Miranda, 384 U.S. at

479. A detained person must unambiguously invoke their right to remain silent for

these protections to flow. Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct.

2250, 176 L. Ed. 2d 1098 (2010).

Importantly, a detained person can waive the privilege of self-incrimination

when such waiver is voluntary, knowing, and intelligent. Miranda, 384 U.S. at

444. The prosecution has the burden of showing by a preponderance of the

evidence that a waiver of Miranda rights was knowing, voluntarily and intelligent.

State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). A valid waiver can be

express or can be implied when the record reflects that the defendant understood

their rights and “volunteered information after reaching such understanding.”

State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986). The waiver need

29 No. 84329-0-I/30

not be explicit, but rather, may be inferred from the facts and circumstances.

State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005 (1987). We will not disturb

a trial court’s conclusion that a waiver was voluntary if it was deemed voluntary

by a preponderance of the evidence and there is substantial evidence in the

record to support this. Athan, 160 Wn.2d at 380. Substantial evidence is

evidence that sufficiently “persuade[s] a fair-minded, rational person of the truth

of the finding.” State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

In this case, after a CrR 3.5 hearing, the trial court entered written findings

of fact and conclusions of law, including that Jobe was arrested in his home and

was read his Miranda rights before being transported to the police station.

Further, the court found that the investigating officer, Detective Calvin Hinson,

took custody of Jobe and brought him into an interrogation room. Hinson read

Jobe his Miranda rights from a pre-written card. The court found that while

reading the rights, “Hinson spoke in a different and quicker tone.”

In his SAG, Jobe highlights several factual findings:

• Finding 9: “Detective Hinson asked Mr. Jobe if he understood the rights and he responded ‘kind of’ but not ‘100%.’ ” • Finding 11: “Mr. Jobe indicated that his English was ‘okay’ and he also spoke Mandinka and Wolof.” • Finding 13: “Mr. Jobe responded appropriately to all questions asked of him and Detective Hinson had ample opportunity to assess his understanding of the English language.” • Finding 15: “Mr. Jobe demonstrated he has a high level of intelligence and has an advanced ability to speak and understand English.”

However, despite highlighting these findings, Jobe does not challenge these or

any of the findings. Unchallenged findings from a CrR 3.5 hearing are verities on

appeal. State v. Escalante, 195 Wn.2d 526, 531, 461 P.3d 1183 (2020) (where

30 No. 84329-0-I/31

defendant moved to suppress his statements but did not challenge the trial

court’s findings rendering them verities). Rather, he challenges the court’s

conclusions that he was fully informed of his Miranda rights and “made a

knowing, intelligent, and voluntary waiver” and that his “statements were given

freely and voluntarily.”

Jobe suggests the court should have considered his language and cultural

views, given that “Jobe was not from the United States, had never been arrested

and interrogated, and previously had lived in a country where it was illegal for the

police to lie.” Further, Jobe points to the fact that he had two interpreters at trial.

However, a language barrier may not prevent a valid waiver of Miranda warnings,

so long as the detained person, “ ‘understands that he does not need to speak to

police and that any statement he makes may be used against him.’ ” State v.

Teran, 71 Wn. App. 668, 672-73, 862 P.2d 137 (1993) (quoting United States v.

Hernandez, 913 F.2d 1506, 1510 (10th Cir.1990), cert. denied, 499 U.S. 908,

111 S. Ct. 1111, 113 L. Ed. 2d 220 (1991)).

Here, in unchallenged findings, the court noted that Hinson and Jobe had

a “lengthy conversation” in English about Jobe’s life and that Jobe had worked as

an Uber driver in London before moving to Seattle. After Hinson read him his

rights, despite Jobe’s initial hesitation about his understanding, he declined

Hinson’s offer to re-read the Miranda warnings and stated that his English was

“okay.” When the conversation turned from Jobe’s life to the investigation, he

“continued to freely answer the questions posed to him.” Then, when Hinson

asked Jobe for a DNA sample, Jobe said “he didn’t want to provide a sample

31 No. 84329-0-I/32

because he didn’t want to incriminate himself.” The court found that Jobe referred

back to his Miranda rights read at the beginning of the conversation and asked if

he could have a lawyer, at which point Hinson ceased questioning. Jobe

demonstrated his understanding and comprehension of the Miranda rights by

explicitly invoking them.

These facts support the conclusion that a language barrier did not prevent

Jobe from understanding his Miranda warnings and his rights. The court’s

findings support its conclusion that Jobe made a knowing, voluntary and

intelligent waiver. The court did not err by admitting Jobe’s statements to Hinson.

CONCLUSION

We affirm the conviction, but remand to strike the urinalysis and breath

analysis conditions as well as the VPA and DNA collection fee from the

sentence.

WE CONCUR: