FILED JULY 28, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
) STATE OF WASHINGTON, ) No. 32454-1-111 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION LISA MARIE MUMM, ) ) Appellant. )
FEARING, C.J. - Lisa Marie Mumm appeals her convictions for three counts of
delivery of the controlled substance, methamphetamine. We affirm her convictions, but
vacate school bus zone sentence enhancements and remand for review of discretionary
legal financial obligations.
FACTS
In November 2012, the North Central Washington Narcotics Task Force
commenced use of Lyle Long as a criminal informant. Long wished to ameliorate No. 32454-1-111 State v. Mumm
charges of three counts of delivery of OxyContin by his cooperation with law
enforcement.
On December 7, 2012, at the behest of the narcotics task force, Lyle Long sought
to purchase methamphetamine from Lisa Marie Mumm. Before journeying to Lisa
Mumm's home, Long met with task force members, who searched him and his car. After
the searches, the task force issued Long marked buy money.
Lyle Long traveled to Lisa Mumm's residence and knocked on the front door.
Narcotics task force agents Jeff Prock and Seth Thomas followed and observed Long
enter Mumm's house at 95 Old Riverside Highway, Omak. Prock next observed a blonde
woman exit the Mumm residence, approach a white Chevrolet Tahoe sports utility
vehicle (SUV), briefly speak with the person in the SUV, and then reenter the house.
Thomas identified the woman as Lisa Mumm. Long later identified the person in the
Tahoe as Christian Aquino Gonzales. According to Long, Mumm carried a half gram of
methamphetamine on her return inside the home. She separated some of the
methamphetamine for her personal use and gave some of the drug to Long.
Three minutes after Lisa Mumm's exchange at the Chevrolet Tahoe, Lyle Long
exited Mumm's residence. Narcotics task force officers again searched Long, his wife,
and Long's vehicle and found no contraband or excess money. Long handed the task
2 No. 32454-1-III State v. Mumm
force a small plastic bag with a "crystal-like substance in it." Report of Proceedings (RP)
at 205. The substance tested positive as methamphetamine.
On January 4, 2013, Lyle Long returned to Lisa Marie Mumm's residence to
purchase methamphetamine. Prior to Long's meeting with Mumm, task force member
Seth Thomas searched Long and found no excess currency or contraband. After Long
entered Mumm's home, Mumm exited the residence and entered a blue Ford Explorer.
Long called and told Thomas that Mumm directed Long to drive to Gene's Harvest Foods
in Omak. Long left Mumm's home and headed, in his own car, to the Omak grocery
store. Thomas surreptitiously followed.
Once he arrived at Gene's Harvest Foods, Lyle Long again called law enforcement
officer Seth Thomas and informed Thomas that Mumm intended to meet a supplier to
acquire methamphetamine. Thomas observed a blue Ford Explorer, owned by Lisa
Mumm's boyfriend, Robert Watts, enter Gene's Harvest Foods' parking lot. Long
observed Robert Watts driving the Explorer. Task force member Thomas saw a woman
in a black coat and a ball cap exit the passenger side of the Explorer and approach Long's
vehicle. Detective Brian Bowling, who also observed the rendezvous, identified the
woman as Lisa Mumm. Long paid money to Mumm. Thomas saw the same woman
return to the Explorer and pivot into the grocery store.
3 No. 32454-1-III State v. Mumm
As Lyle Long paid Lisa Mumm and before she entered the grocery store, the white
Chevrolet Tahoe present during the December 7 sale, entered Gene's Harvest Foods'
front parking lot. As Mumm entered the grocery store, Long phoned narcotics agent Seth
Thomas and informed him that Mumm became frightened and shifted the consummation
of the sale to the far side of the store building. Thomas observed Long's vehicle move to
the other side of the building. Detective Brian Bowling observed Mumm's vehicle move.
On the far side of Gene's Harvest Foods' building, Lyle Long exited his car. Lisa
Marie Mumm weighed the methamphetamine in her car and handed the drugs to Robert
Watts, who tendered the controlled substance to Long. Long drove from the store and
met task force officers at another site. Long delivered Seth Thomas a small bag of
methamphetamine, after which Thomas searched Long's person and found no excess
money or other contraband.
On January 30, 2013, North Central Washington Narcotics Task Force members
Seth Thomas and Brian Bowling met with Lyle Long. Long explained that he attempted
contact with Lisa Mumm and, in response, received text messages from Melissa Starzyk,
Mumm's roommate. Long and Starzyk exchanged text messages about Long's
purchasing methamphetamine, but the two could not arrange a convenient time for a
4 No. 32454-1-111 State v. Mumm
transaction. During one of his texts to Starzyk, Long gratuitously sent Starzyk a
photograph of his penis.
On February 1, 2013, Lisa Marie Mumm sold methamphetamine to Lyle Long for
a third and final time. Narcotics agent Seth Thomas searched Long before the
transaction. Thomas found no money or contraband on Long. Detective Brian Bowling
searched Long's car and found no money or contraband. Thomas provided purchase
money to Long. Seth Thomas followed Long to Mumm's house. Inside Mumm's
residence, Long paid Mumm, and the two agreed to meet at a park in Riverside for
delivery of the methamphetamine.
Lisa Marie Mumm left her Omak house in Robert Watts' blue Ford Explorer and
journeyed to Christian Aquino's home to retrieve methamphetamine. Long traveled to
Riverside and waited twenty minutes. Lisa Mumm called Long and changed the delivery
site from a park in Riverside to the intersection of Bide-A-Wee Street and Old Riverside
Highway, halfway between the towns of Riverside and Omak. Melissa Starzyk, in the
Ford Explorer, met Long at the intersection. Starcyk passed Long a magazine with
methamphetamine therein.
On February 1, Lyle Long later met task force member Seth Thomas and
transferred to him the bag of methamphetamine. Agent Thomas searched Long and
5 l i
I No. 32454-1-III
I State v. Mumm
found $20 in Long's hat. Long lied and told Thomas the money was for purchase of milk
for his son. Following questioning, Long admitted the money belonged to the task force.
Long admitted that he purchased a smaller amount of methamphetamine in return for
Lisa Mumm returning him $20.
As a result of his attempt to retain $20, the North Central Washington Narcotics
Task Force arrested Lyle Long for theft and uttering a false statement to a public servant.
Long pied guilty to both charges and to two counts of delivery of a controlled substance.
At the time of Lisa Mumm' s trial, Long had yet to be sentenced, but he anticipated
receiving a forty-month drug offender sentencing alternative sentence. After the
February 1 sale, the task force ceased utilizing Long as an informant.
On February 6, 2013, Brian Bowling and Seth Thomas met with Lisa Mumm and
Roberts Watts and showed them a photo montage. Mumm identified a photograph of
Christian Aquino Gonzales and disclosed that she purchased methamphetamine from him
on a regular basis. Mumm declared that she "normally [buys] a teener or an eight-ball,
never large amounts." RP at 316. Mumm added that she sometimes buys drugs seven
times daily from Gonzales.
On February 21, 2013, the narcotics task force arrested Lisa Marie Mumm at
Okanogan's Bingo Casino. Officers seized the blue Ford Explorer that Mumm then
6 No. 32454-1-111 State v. Mumm
drove.
Omak School District Transportation Supervisor Dan Wood provided narcotics
agent Seth Thomas a list of school district bus stops with their addresses. With a
Rolatape Model 34 rolling wheel measuring tape, Thomas measured the distance between
the nearest bus stop and the location of each methamphetamine sale by Lisa Mumm. The
distance from 95 Old Riverside Highway, the site of the December 7 sale, to the closest
bus stop was 463 feet. The distance from Gene's Harvest Food, the site of the January 4
sale, to the nearest bus stop was 450 feet. The distance from Christian Aquino's
residence; where Mumm got the methamphetamine for the February 1 sale, to a bus stop
was 509 feet. The intersection of Bide-A-Wee Street and Old Riverside Highway, where
Starzyk delivered the drugs to Long on February 1, includes a bus stop.
PROCEDURE
The State of Washington charged Lisa Marie Mumm with three counts of delivery
of methamphetamine and one count of possession of methamphetamine. At the
beginning of trial, during discussion of motions in limine, the State agreed not to mention
Lisa Mumm' s past criminal convictions during its case in chief, but wished to reserve the
right to introduce evidence of past convictions if Lisa Mumm testified or otherwise
opened the door to the testimony.
7 No. 32454-1-III State v. Mumm
During trial, Melissa Starzyk testified that buyers of methamphetamine came to
Lisa Mumm's home five to seven times per day. Starzyk knew that Mumm sold Lyle
Long drugs. Starzyk testified to her convictions for theft in the third degree and a
delivery of a controlled substance. She conceded she used methamphetamine regularly.
Starzyk also testified that Mumm evicted her from their shared home.
Omak School District Transportation Supervisor Dan Wood testified, during trial,
that the school district maintained a bus stop at 102 Old Riverside Highway during the
2012-13 school year. Wood identified a school bus stop at Bartlett Avenue and the alley
behind a bank near Gene's Harvest Foods. Wood also testified to a bus stop at 29789
Highway 97 and another at the intersection of Bide-A-Wee Road and Old Riverside
Highway.
On direct examination, Lyle Long testified to convictions of theft in the first
degree and possession of stolen property. The State introduced into evidence text
messages between Lisa Mumm and Lyle Long concerning drug sales. Mumm's counsel
then cross examined Lyle Long about his relationship with Mumm.
Q And when did-Did Ms. Mumm move in with you and your father? A Yes. Q When was that? A (Inaudible) young. I was pretty young. I didn't quite remember dates that well. 8 No. 32454-1-111 State v. Mumm
Q Would you characterize Ms. Mumm, your father and you, were you living-was that a family type environment? A Some people will try to call it that. Q How would you characterize it? A As just one ofmy dad's girlfriends. Q And how long did Ms. Mumm live there? A Thirteen years. Q And during those thirteen years, would you characterize Ms. Mumm as your stepmother? A No. Q How would you characterize her? A (Inaudible}- [State]: Again, I'm going to object to the relevance. We also would ask to take a matter up outside the presence of the jury based on earlier- motion by the state regarding-admission of evidence. THE COURT: I'm going to ask the jury to step out, please. Thank you. Jury out THE COURT: Thank you. You may be seated. (Inaudible) argument, Mr. Sloan. [State]: Your Honor, I guess this is more of a fair warning argument for the state, in that if counsel seeks to go into this type of background the state would request the permission to go into additional background that would arguably fall under the 404(b) evidence that the defendant is seeking to keep out, and prior criminal history, which involves ongoing drug dealing and the defendant's prior arrests for task force delivery activity, which would have occurred during and ultimately at the end of this-the time that she was with the defendant's father [sic]. So, counsel is not generally permitted to ask the background information without the other party being able to basically ask about those same incidences, what was really going on. What's trying to be portrayed here is effective character evidence that somehow she was acting in a motherly stepmother role here, where the reality is quite different. We're asking-we're basically asking the court that if the defendant is going to go there that we're allowed to explore this area-more fully.
9 No. 32454-1-III State v. Mumm
And so we're doing this more as a motion to-to give the defense the ability to decide that, but if they do go there we are asking for it to let us explore this more fully. Because it's around-it's through the same time frame. Thank you. THE COURT (offmic'): You may be opening a door there, Mr. Blount [defense counsel]. Now that you're kind of reading between the lines,-(inaudible) appear-indicating that they're in a family environment and (inaudible) reason her-his father and she were engaged in other activities, you may be opening a door here, (inaudible) you may not want to open. I don't know. So,-I don't know this. Because obviously [the State] (inaudible) and I didn't. So, I'm understanding Mr. Sloan is giving you (inaudible) warning that at this point- [Defense Counsel]: (Inaudible)- THE COURT: -shot across the bow, but-so to speak, that it may explore, and the court would be more inclined to open it up and allow that exploration if in fact it goes on further. I don't know the purpose of the inquiry. You've laid some foundation, but after a while it gets beyond basically what I' 11 characterize as some preliminary, but I've allowed it to a certain point. Do you want to respond to Mr. Sloan's (inaudible)? [Defense Counsel]: Yes, your Honor. The reason for this questioning are two. This goes to the witness' motive and bias. Secondly,-we understand the state intends-We understand that this would open the door. Defense has already-thought this through. And if the state wishes to pursue that we have no objection- ifwe open the door. THE COURT: I don't think he's quite opened it, Mr. Sloan-but he's certainly headed in that direction. I hear what you're saying- [The State]: Thank you. THE COURT:-indicated it's a warning to him that there may be a question or two away from that door being opened. (Inaudible), and basically if there's other activities going on that he can testify to that would
10 No. 32454-1-111 State v. Mumm
point to your (inaudible), Mr. Blount, you need to be-I guess you're put on notice at this point. And basically under Rule 404(b), we're talking about evidence of other crimes, wrongs or acts that (inaudible) character, but however may be admissible if there's indication-you talked about motive, intent, (inaudible) or opportunity, here-you're indicating you may be headed down that direction. [Defense Counsel]: Understood, your Honor. THE COURT: With that in mind, do you have any further comment? [Defense Counsel]: No, your Honor.
Q So, Mr. Long, what you had just stated was-testified was that you and Ms. Mumm and your father lived in the same household for 13 years, correct? A Yes. Q And-when did you leave the household? A Off and on (inaudible) 13 years. Q So during those 13 years-when you're saying you lived off and on, can you be a little more specific what that means? A (Inaudible) live there so I moved out. I lived on the streets.
RP at 388-93.
On redirect, the State elicited the following testimony from Lyle Long:
Q And did Ms. Mumm indicate-a reason why she was nervous about that? A Because she didn't want to go to prison. Q Again? A Again. Q Was the task force involved-when you say the raid, was-that a task force case, at your father's house involving Ms. Mumm? A Yes. Q And your-your father at that point? A Yes. Q Was that the end of their relationship? 11 No. 32454-1-111 State v. Mumm
A Yeah. That's what started it. And after she got out she came back (inaudible) for six months and then that was-my dad kicked her out. 'Cause she (inaudible) to go right back to the same routine. Q And the house where this was at, was that your-house owned by your dad? A Yes. Q So it wasn't-wasn't her house. A No. Q And was that involving methamphetamine? A Yes. Q Is that-when you were in contact with the task force, is that why you believed you could obtain methamphetamine- A Yeah. Q - from Ms. Mumm? A Yep.
RP at 404-06.
Lisa Mumm defended the prosecution by contending her former roommate
Melissa Starzyk sold the methamphetamine. Mumm declared that Starzyk frequently
borrowed her phone and car. Mumm testified that Long regularly visited her house for
five months to see Starzyk. Mumm admitted exchanging text messages with Long
regarding selling him methamphetamine, but claimed she contacted Long on behalf of
Starzyk. During trial, witnesses Starzyk and Lyle Long refuted the contention that
Starzyk sold Long methamphetamine. Mumm explained that she interfaced with
Christian Aquino Gonzales because she borrowed money from him.
12 No. 32454-1-111 State v. Mumm
On direct examination, defense counsel asked Lisa Mumm: "were you charged
with anything?" RP at 474. Mumm responded "[t]hree counts of delivery." RP at 474.
Counsel then inquired: "is that-the only felony that you were charged with?" RP at 474.
Mumm answered that the State also charged her with escape. She explained that a prison
allowed her a three-day furlough to locate her daughter, and she failed to return. On
cross examination, the State explored those statements:
Q Ms. Mumm, you had testified-you were asked your-your experience in-dealing with drugs. And you indicated that your experience in dealing with drugs was an incident back when? A (Inaudible). Q And you said you were charged with just three counts. A Three counts of delivery, yes. Q That's not exactly true, is it. A And the-and the escape. Q You were charged with twelve counts, weren't you? A Oh. When 1-Yeah. They (inaudible) twelve counts on me, but- Q Those counts included other counts of delivery, unlawful use of building for drug purposes, possession of a controlled substance other than marijuana, use of drug paraphernalia, and four counts of unlawful possession of a firearm? A I don't even know how they-I did not have no-no firearm. Those were- Q You were charged with those crimes? A Yeah. Q And there was an agreement for you to plead-it wasn't twelve- plus months; it was 20 months. Correct? A Yeah, but-Yeah, but I did-I did-
13 No. 32454-1-III State v. Mumm
Q Now that's not really the only dealings you had back in that time, was it? Those were-those weren't the only dealings you had with drugs. Isn't it true that you worked-had other cases open that you worked with the task force back at that time? A One time. Q Wasn't it two times? A I only recall one time.
Q But then you got caught delivering [methamphetamine] again after that, which is what resulted in you being charged and ultimately convicted. A Correct.
RP at 497-99.
At the close of trial testimony, Lisa Marie Mumm proposed a limiting instruction
in accordance with 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 5 .05, at 172 (3d ed. 2008) (WPIC). The proposed jury instruction read:
You may consider evidence that the defendant has been convicted of a crime only in deciding what weight or credibility to give to the defendant's testimony and for no other purpose.
RP at 535. The trial court denied giving the jury instruction on the basis that Mumm
opened the door to the testimony and thus the State used the testimony as substantive,
rather than impeachment, evidence. In its ruling, the trial court emphasized a note to
pattern instruction 5.05:
Use this instruction only when a defendant is a witness and a prior conviction has been admitted solely for impeachment purposes. It should not be given if a prior conviction was admitted for a substantive purpose. 14 No. 32454-1-III State v. Mumm
RP at 536.
At the State's request, the trial court delivered the following jury instruction:
"School bus" means a vehicle that meets the following requirements: (1) has a seating capacity of more than ten persons including the driver; (2) is regularly used to transport students to and from school or in connection with school activities; and (3) is owned and operated by any school district or privately owned and operated under contract or otherwise with any school district for the transportation of students.
Clerk's Papers at 83.
The jury found Lisa Mumm guilty of three counts of delivery of
methamphetamine. The jury also returned special verdicts, in which it found that all
three deliveries occurred within 1,000 feet of a school bus stop.
At sentencing, the trial court imposed $4,570.50 in legal financial obligations.
The discrete obligations included a $500.00 victim assessment charge, $220.50 for the
criminal filing fee and sheriff service fees, a $100.00 deoxyribonucleic acid (DNA)
collection fee, a $40.00 booking fee, a $3,000.00 VUCSA fine, and $460.00 in
restitution. The sum of those numbers totals $4,320.50. The trial court struck that
number from the bottom of the judgment and sentence and wrote $4,570.50.
15 No. 32454-1-III State v. Mumm
LAW AND ANALYSIS
On appeal, Lisa Marie Mumm challenges her convictions for delivery of a
controlled substance on the ground that her counsel ineffectively failed to object to
improper character evidence. Mumm also challenges the school bus route enhancements.
Finally, Mumm questions the imposition of some of the legal financial obligations. We
affirm the delivery convictions, vacate the sentencing enhancements, and remand for a
new review of legal financial obligations.
Ineffective Assistance of Counsel
Lisa Mumm alleges that her trial counsel was ineffective for failing to object to the
admission of unproven criminal charges and Lyle Long's testimony that she frequently
dealt drugs. The State counters by saying that her counsel was not ineffective for failing
to object to the testimony because Mumm's counsel opened the door to it. We do'not
address whether trial counsel performed deficiently since we can resolve Mumm' s claim
on the lack of prejudice.
A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's
performance was deficient, and (2) the deficient performance prejudiced the defendant.
Stricklandv. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.
16 No. 32454-1-III State v. Mumm
App. 870, 879, 320 PJd 142 (2014). If one prong of the test fails, we need not address
the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
For the deficiency prong, this court bestows great deference to trial counsel's
performance and begins the analysis with a strong presumption that counsel performed
effectively. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). Deficient
performance is performance that falls below an objective standard of reasonableness
based on consideration of all circumstances. State v. McFarland, 127 Wn.2d 322, 334-
35, 899 P.2d 1251 (1995). The defendant bears the burden to prove ineffective assistance
of counsel. State v. McFarland, 127 Wn.2d at 335.
Trial strategy and tactics cannot form the basis of a finding of deficient
performance. State v. Johnston, 143 Wn. App. 1, 16, 177 PJd 1127 (2007). The
decision of when or whether to object to testimony is a classic example of trial tactics.
Only in egregious circumstances, on testimony central to the State's case, will the failure
to object constitute incompetence of counsel justifying reversal. State v. Madison, 53
Wn. App. 754, 763, 770 P.2d 662 (1989).
Under Washington precedence, a defendant bears the burden of showing, based on
the record developed in the trial court, that the result of the proceeding would have been
different but for counsel's deficient representation. State v. McFarland, 127 Wn.2d at
17 No. 32454-1-111 State v. Mumm
337. If the defendant claims that defense counsel should have objected to evidence, the
defendant must establish that the trial court probably would have sustained the objection.
State v. McFarland, 127 Wn.2d at 337 n.4.
Lisa Mumm argues that her trial counsel was ineffective on two occasions: (1)
when the State cross-examined Mumm about drug dealing while living with Lyle Long
and his father, and (2) when the State elicited testimony from Lyle Long claiming that
Mumm frequently sold drugs. Assuming Mumm's counsel inadequately performed, we
conclude the alleged inadmissible testimony did not prejudice her.
Lisa Marie Mumm argues that the improper character evidence prejudiced her
because the trial turned on the credibility of witnesses. Nevertheless, the State presented
overwhelming evidence to establish that Mumm delivered methamphetamine on three
occasions to Lyle Long. The State presented Mumm's own statements about selling
methamphetamine, her text messages, multiple police officer's testimony, the
methamphetamine she sold, and Lyle Long and Melissa Starzyk's testimony. Mumm's
testimony that she sent texts to Lyle Long to facilitate the methamphetamine sales on
behalf of Melissa Starzyk destroyed, rather than advanced, her defense. The testimony
implicated Mumm as an accomplice. RCW 9A.08.020. The same criminal liability
18 No. 32454-1-111 State v. Mumm
attaches to a principal and her accomplice because they share equal responsibility for the
substantive offense. State v. Silva-Baltazar, 125 Wn.2d 472,480, 886 P.2d 138 (1994).
WPIC 5.05
Lisa Mumm next assigns error to the trial court's refusal to issue a WPIC 5.05
instruction limiting the jury's ability to consider her prior convictions. WPIC 5.05 reads:
You may consider evidence that the defendant has been convicted of a crime only in deciding what weight or credibility to give to the defendant's testimony, and for no other purpose.
WPIC 5.05, at 172. The State responds that the proposed instruction would be
inappropriate because evidence of other drug sales was admitted substantively. We do
not address the merits ofMumm's argument, because of the lack of prejudice resulting
from the refusal to give the jury instruction.
A trial court must give a limiting instruction when evidence is admitted for one
purpose but not for another and the party against whom the evidence is admitted requests
the trial court give the instruction. State v. Gallagher, 112 Wn. App. 601,611, 51 P.3d
100 (2002). Therefore, in order to determine whether a limiting instruction was properly
refused, a court must determine the purpose for which the testimony was admitted.
The State argues that evidence of Lisa Mumm's earlier unproven charges and Lyle
Long's testimony that Mumm often sold illicit drugs were admitted for substantive
19 No. 32454-1-111 State v. Mumm
purposes. The State maintains that defense counsel elicited some of the testimony and
opened the door to the rest when counsel questioned Long about Mumm living with him
and his father. The State believes the evidence of the living arrangement rendered a
misperception that Mumm created a family environment at Lyle Long's home, when
Mumm's presence actually caused havoc because of her methamphetamine sales. The
State contends evidence of earlier drug transactions addressed Mumm's knowledge, bias,
and motive and the testimony rebutted assertions uttered by Mumm during her testimony.
Generally, evidence of earlier convictions and wrongful acts represents
impeachment, not substantive evidence. State v. Jones, 101 Wn.2d 113, 120-21, 677
P.2d 131 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761
P.2d 588 (1988) (pluality opinion), adhered to on other grounds on recons., 113 Wn.2d
520, 782 P.2d 1013 (1989). "Substantive evidence" is defined as "[e]vidence offered to
help establish a fact in issue, as opposed to evidence directed to impeach or to support a
witness's credibility." BLACK'S LAW DICTIONARY 678 (10th ed. 2014). Whereas
"impeachment evidence" is defined as "[e]vidence used to undermine a witness's
credibility." BLACK'S LAW DICTIONARY 676 (10th ed. 2014).
We question whether evidence of Lisa Mumm's earlier crimes or drug sales helps
to prove she committed the three charged crimes. The State asked to introduce evidence
20 No. 32454-1-III State v. Mumm
of the earlier sales to counter the defense suggestion that Lisa Mumm lived with Lyle
Long in a family environment. This purpose tends to impeach Mumm' s testimony
concerning her relationship with Lyle Long, but does not directly show sales of drugs in
2012 and 2013. Still, we recognize the possibility that the evidence could be considered
substantive evidence under the issues raised by the State and Mumm' s own testimony.
We need not resolve this interesting question, because we rule any erroneous failure to
deliver the jury instruction was harmless.
An error is harmless if the outcome of the proceeding would have been the same
even if the error had not occurred. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76
( 1984 ). The error must be harmless beyond a reasonable doubt. Chapman v. California,
386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
As the State argues, WPIC 5.05 would not cover all of the evidence Lisa Mumm
argues needed to be limited. The jury instruction would only blanket the convictions, not
the information of Long's drug dealing. In addition, as already analyzed, the State
presented a large quantity of admissible evidence that established Mumm's guilt,
including Mumm's own statements about selling methamphetamine, her text messages,
multiple police officer's testimony, the methamphetamine she sold, and Lyle Long's and
21 No. 32454-1-111 State v. Mumm
Melissa Starzyk's testimony. The refusal to give a limiting instruction was harmless
beyond a reasonable doubt.
School Bus Stop Enhancements
Lisa Mumm argues that insufficient evidence supported the school bus route stop
enhancement because the State failed to prove the seating capacity of the buses in
question. Mumm argues that, because the jury instruction's definition of a school bus
included the bus's seating capacity, the law of the case doctrine required the State to
prove the seating capacity. The State responds that the seating capacity is not a necessary
element of the sentencing enhancement and that the law of the case doctrine does not
apply to definitional instructions. We agree with Mumm and reverse the sentence
enhancements.
Evidence is sufficient if a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.
App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor
of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier
of fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113
Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
22 No. 32454-1-III State v. Mumm
A "school bus route stop" "means a school bus stop as designated by a school
district." RCW 69.50.435(6)(c). The State correctly notes that seating capacity is not
part of the definition of a school bus. RCW 69.50.435(6)(b) defines "school bus" as:
... a school bus as defined by the superintendent of public instruction by rule which is owned and operated by any school district and all school buses which are privately owned and operated under contract or otherwise with any school district in the state for the transportation of students.
Nevertheless, the State's proposed jury instruction, accepted by the trial court, defined a
school bus as containing at least eleven seats. The State presented no evidence as to the
capacity of the school buses that utilized the stops near the situs of Lisa Mumm's
methamphetamine sales.
Under the law of the case doctrine, jury instructions not objected to become the
law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). A
defendant may assign error to the sufficiency of the evidence element added by a jury
instruction. State v. Hickman, 135 Wn.2d at 102. The law of the case tenet is a broad
doctrine that courts apply to to-convict instructions and definitional instructions. State v.
Calvin, 176 Wn. App. 1, 21,316 P.3d 496 (2013), review granted in part, 183 Wn.2d
1013, 353 P.3d 640 (2015).
23 No. 32454-1-111 State v. Mumm
Legal Financial Obligations
Lisa Mumm next argues that the trial court erred by imposing legal financial
obligations. Mumm makes the argument without citing State v. Blazina, 182 Wn.2d 827,
344 PJd 680 (2015), because she submitted her brief in December 2014. The State
responds that the court should not address the issue because Mumm failed to object
below to imposition of the financial obligations. The State also argues that evidence
shows that Mumm has the current or future ability to pay.
In State v. Blazina, our Supreme Court clarified that RCW 10.01.160(3) requires
the trial court "do more than sign a judgment and sentence with boilerplate language
stating that it engaged in the required inquiry." Blazina, 182 Wn.2d at 838. Rather, the
record must reflect that the trial court conducted an individualized inquiry into the
defendant's current and future ability to pay. This inquiry includes evaluating a
defendant's financial resources, incarceration, and other debts, including restitution. This
inquiry, however, is only required for the imposition of discretionary legal financial
obligations. State v. Lundy, 176 Wn. App. 96, 103, 308 P.3d 755 (2013).
We must first decide whether to address this assignment of error given that Lisa
Mumm did not object to the imposition of legal financial obligations at trial. RAP 2.5(a)
provides, in relevant part: "The appellate court may refuse to review any claim of error
24 No. 32454-1-III State v. Mumm
which was not raised in the trial court." With respect to unpreserved challenges to legal
financial obligations, our high court clarified in Blazina: "A defendant who makes no
objection to the imposition of discretionary [legal financial obligations] at sentencing is
not automatically entitled to review." Blazina, 182 Wn.2d at 832. "Each appellate court
must make its own decision to accept discretionary review [of claimed LFO errors not
appealed as a matter of right]." Blazina, 182 Wn.2d at 835. Nevertheless, the Blazina
court clarified that a challenge to the trial court's entry of a legal financial obligation
order under RCW 10.01.160(3) is ripe for judicial determination. Despite the minimal
amount of mandatory legal financial obligations imposed, we grant Mumm's request to
review her assigned error because we remand the case anyway for sentencing without the
sentence enhancements.
The State argues that the trial court conducted a sufficient analysis of Lisa
Mumm's present and future ability to pay during the trial. The State emphasizes that
Mumm testified to unreported income and minimal expenses. We consider this
testimony insufficient, because no one quantified the income or expenses. The trial court
also engaged in no inquiry or analysis of Mumm' s ability to pay.
The trial court imposed mandatory legal financial obligations of a $500 victim
assessment fee, a $200 criminal filing fee, and a $100 DNA collection fee. State v.
25 I No. 32454-1-111 State v. Mumm
Munoz-Rivera, 190 Wn. App. 870, 880, 361 P.3d 182 (2015). These three fees may not
be challenged. We remand to the trial court to determine whether Lisa Mumm can or
will possess the capability to pay the $40.00 booking fee and $20.50 sheriff service fees.
Lisa Mumm also argues that the trial court erred in adding up the legal financial
obligations in the judgment and sentence. Since we are remanding for a new
determination of legal financial obligations, Mumm can raise any purported calculation
mistake with the trial court on remand. State v. Healy, 157 Wn. App. 502,516,237 P.3d
360 (2010).
VUCSA Fines
Lisa Mumm contends that the trial court erred by imposing $3,000 in fines,
pursuant to the Violations of the Uniform Controlled Substance Act, chapter 69.50 RCW
in Washington (VUCSA), because the trial court found her indigent for purposes of
appointing defense counsel at the commencement of the prosecution. The State does not
respond to this assignment of error.
A drug offender usually also violates VUSCA and thereby subjects herself to
additional fines. Former RCW 69.50.430 declares:
(1) Every person convicted of a felony violation ofRCW 69.50.401 ... shall be fined one thousand dollars in addition to any other fine or penalty imposed. Unless the court finds the person to be indigent, this additional fine shall not be suspended or deferred by the court. 26 No. 32454-1-111 State v. Mumm
(2) On a second or subsequent conviction for violation of any of those laws listed in subsection ( 1) of this section, the person shall be fined two thousand dollars in addition to any other fine or penalty imposed. Unless the court finds the person to be indigent, this additional fine shall not be suspended or deferred by the court.
Former RCW 69.50.430 (2003).
This court previously addressed VUCSA fines in State v. Mayer, 120 Wn. App.
720, 86 P.3d 217 (2004). In Mayer, John Mayer pled guilty to manufacturing
methamphetamine. The trial court declined to impose a VUSCA $2,000 fine because it
reasoned Mr. Mayer's incarceration would render him indigent. This court determined
that RCW 69.50.430 is mandatory and the sole exception lies when the trial court finds
the defendant to be indigent. In addressing the trial court's finding of indigency, the
court commented that RCW 69.50.430's use of the verb "to be" commands the trial court
to assess indigency in accordance with the person's situation at the time of sentencing,
not as the situation was in the past. State v. Mayer, 120 Wn. App. at 728.
Lisa Marie Mumm argues that her indigency for purposes of appointment of
counsel qualifies her as indigent for purposes of the fine imposed under RCW 69.50.430.
She does not contend she was indigent at the time of sentencing. Under State v. Mayer,
the trial court assesses indigency at the time of sentencing, not commencement of the
prosecution. 120 Wn. App. at 728. Therefore, we reject Mumm's assignment of error.
27 No. 32454-1-III State v. Mumm
Nevertheless, we note that Mumm may raise the issue again at resentencing.
STATEMENT OF ADDITIONAL GROUNDS
In her statement of additional grounds, Lisa Mumm attaches a portion of a
newspaper article describing the criminal sentences imposed on Lyle Long, the State of
Washington's confidential informant, for violation of a protective order, residential
burglary, bail jumping, and delivery of Oxycodone. She states the article comes from the
Omak Chronicle. Mumm claims the convictions reflect on the credibility of Long. She
does not provide any argument as to whether any lack of credibility of Lyle Long impacts
her convictions.
A criminal defendant may submit a pro se statement of additional grounds for
review "to identify and discuss those matters related to the decision under review that the
defendant believes have not been adequately addressed by the brief filed by the
defendant's counsel." RAP 10.IO(a). The rule additionally declares:
Only documents that are contained in the record on review should be attached or referred to in the statement.
RAP 10.IO(c); see also State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008).
Lisa Marie Mumm violates this rule. We do not accept as verity hearsay statements from
newspaper articles.
28 1 I !
I No. 32454-1-111 State v. Mumm
I CONCLUSION
We affirm Lisa Mumm's convictions for delivery of methamphetamine, but vacate
the three school bus stop sentence enhancements. We remand for the trial court to strike
the enhancements and to engage in an inquiry as to whether, and in what amount, the
court should impose discretionary legal financial obligations. Mumm may also raise any
alleged inability to pay the $3,000 VUSCA fine on resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J. j