IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 83284-1 Respondent, DIVISION ONE v. UNPUBLISHED OPINION MATTHEW MCCOLLIAN,
Appellant.
COBURN, J. — Matthew McCollian appeals his convictions of murder in
the second degree, unlawful possession of a firearm in the second degree, and
arson in the second degree. McCollian claims that (1) the trial court failed to
grant a mistrial after erroneously admitting text messages from the deceased to
her mother, (2) testimony that McCollian had a handgun five days prior to the
murder violated ER 404(b), (3) a police officer testifying to the existence of a
perjury statement on a form signed by McCollian improperly commented on his
credibility, and (4) the accumulation of errors affords him a new trial. The trial
court incorrectly concluded an ER 404(b) analysis did not apply, but any error
was harmless. We find no other error.
However, we accept the State’s concession that McCollian is entitled to
resentencing with a reduced offender score that comports with State v. Blake,
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83284-1/2
197 Wn.2d 170, 481 P.3d 521 (2021). Because we cannot determine if the trial
court intended to impose community custody supervision fees, the parties can
clarify that issue at resentencing. We affirm the convictions but remand for
resentencing.
FACTS
In December 2018, Sophia Stutzman and her mother, Chanelle
Livingston, lived with Stutzman’s fiancé in Monroe, Washington. On December
11, Stutzman asked Livingston to take her to go see McCollian at his apartment
in Everett. Livingston knew McCollian as someone who was “interested in
seeing” Stutzman, but she was unsure if they had a romantic relationship.
Livingston drove Stutzman to McCollian’s apartment in Everett at around 9:00
p.m. Livingston saw McCollian greet Stutzman halfway up a stairway, they
waved to Livingston, and Livingston left to go to her friend’s house. Livingston
had planned to stay at her friend’s until Stutzman needed a ride home.
At around 11:30 p.m. or 12:00 a.m., Livingston noticed that she had a
missed call from Stutzman. Accordingly, Livingston left to pick Stutzman up from
McCollian’s apartment. During that time, Stutzman and Livingston exchanged
multiple text messages, where Stutzman expressed fear, her desire to leave, and
her observations about McCollian’s behavior. Stutzman stopped responding to
Livingston at around 1:05 a.m. Livingston waited for Stutzman in McCollian’s
apartment complex parking lot, eventually knocking on the door with no response
and subsequently leaving.
2 No. 83284-1/3
About 3:20 a.m. on December 12, 2018, Stutzman’s body was found face
down in a road behind Costco in Tumwater, Washington. A pathologist
concluded the cause of death was a gunshot wound to the chest. The bullet had
entered just underneath her collarbone on the left side and exited her right arm,
piercing both her left lung and aorta. The bullet had exited her body. The
pathologist characterized the gunshot wound as “an indeterminate range gunshot
wound,” which he described as normally being between 18 and 24 inches. An
analysis of a vaginal swab from Stutzman disclosed the presence of semen that
matched with McCollian’s deoxyribonucleic acid (DNA) profile along with the
DNA of another man. 1
Cell phone tower records for both Stutzman’s and McCollian’s cell phones
showed that both phones were pinging off cell phone towers in the same general
areas along I-5 southbound from 2:21 a.m. to 6:56 a.m. on December 12.
McCollian’s cell phone pinged in Tumwater near Costco at 3:15 a.m., south of
Chehalis at 3:57 a.m., and La Center at 5:56 a.m. Cell phone tower records then
showed McCollian’s cell phone heading back north. The records also showed
that Stutzman’s phone was near McCollian’s apartment when she was text
messaging with Livingston. Stutzman’s phone was located in a garbage can in
Renton.
1The forensic scientist explained that “it was 400 octillion times more likely to observe that mixed DNA profile if it originated from [Stutzman], [McCollian], and an additional unknown contributor rather than [Stutzman] and two unrelated individuals selected at random in the U.S. population.”
3 No. 83284-1/4
Detectives later discovered that McCollian’s bank card was used to make
a withdrawal on December 12, 2018, at around 12:30 a.m. The video and bank
records of the withdrawal correlated with a withdrawal receipt that was located in
a white Toyota Camry McCollian had rented. The bank records also showed a
transaction at the ARCO station in Centralia, Washington, at around 6:58 a.m. on
December 12, 2018.
On December 15 at 7:52 a.m., McCollian called the police and reported
that his rental vehicle, a white Toyota Camry, was stolen. McCollian told the
officer that “he couldn’t remember where he had rented it from.” Later, McCollian
went into the police department to make a formal report and provided his keys.
He told the officer that he rented the vehicle the previous Monday. He said that
he had been on a date the night before and came back to the hotel and parked
the car in the hotel parking lot in a handicapped stall but then moved it onto the
side of the road. He first told the officer that he noticed it was stolen sometime
after midnight, and then later told the officer he noticed it was stolen at 2:00 a.m.
He stated he was going to the car in order to bring his date home.
McCollian completed a police vehicle theft report form that contained a
perjury statement and a consent to have law enforcement search the vehicle.
The officer who took the report then located the vehicle near the same
hotel where McCollian had stayed. When the officer inspected the vehicle, he
observed that there was soot all over the inside of the car. He found fire damage
and two gas cans in the front passenger seat area.
4 No. 83284-1/5
The officer called McCollian about 15 to 20 minutes after he had seen him
last and told him he located the vehicle. The officer asked McCollian if he would
come meet him, but McCollian’s response was that he was busy. The officer
asked him where he was and what he was doing, but McCollian said it did not
matter and became increasingly defensive. The officer suggested that it did not
seem to be a random act, and that McCollian might actually know the person
who had done it. McCollian did not appreciate the accusations and got
increasingly “sort of aggressive and defensive on the phone.” The officer
reminded McCollian that making a false police report is a crime, and McCollian
indicated that he did not want to speak with him anymore.
The hotel where McCollian was staying had surveillance video that
showed he had checked into the hotel at 1:52 a.m. on December 15 and checked
out at 10:40 a.m. that morning. He did not list his car with the hotel as the Toyota
Camry that was stolen but as a Honda Element.
Detectives impounded the Camry and conducted an investigation. A
cigarette butt that was smoked a little more than half sat on the center console,
and a motorcycle helmet sat on the back seat. A one-gallon gas can sat on the
front passenger seat that was burned, and another gas can on the floor appeared
untouched by the flames with a puncture on the side of it. The majority of the fire
damage occurred in the front passenger seat.
A fire marshal inspected the vehicle and found there was “minimal
damage, because [the fire] was confined to the interior of the vehicle. . . .” He
indicated that the fire was an “oxygen-deprived fire” that “starved itself out.” He
5 No. 83284-1/6
concluded that the “fire [w]as an intentionally set incendiary fire” that was “set by
a hand-held open flame.”
A forensic examination of the car discovered blood on the passenger side
of the center console, the front vertical portion of the center console, the front
passenger side floorboard, above the glove box door, and the interior surfaces of
the glove box door. A DNA analysis of the blood from the vehicle glove box
resulted in a match to Stutzman’s DNA.
Investigators also found evidence of the firing of a handgun inside the
vehicle. They found (1) an empty 9mm Luger cartridge case, commonly referred
to as a “shell,” on the rear driver’s side floorboard, (2) a bullet-impacted
passenger seatbelt and strap, (3) a bullet defect in the passenger side B pillar 2
(4) a fired bullet in between that B pillar cover and the B pillar, and (5) a dent in
that B pillar. A forensic scientist concluded that it was likely that one shot was
fired inside the vehicle, the general direction the bullet traveled was likely from
the driver’s side to the passenger side, Stutzman’s wound was consistent with
the bullet trajectory, and that “the female subject was likely sitting in the front
passenger seat when she was shot.”
The State charged McCollian with intentional murder in the second degree
or in the alternative felony murder in the second degree predicated on assault,
unlawful possession of a firearm in the second degree, and arson in the second
The B pillar refers to the structural framing of the vehicle between the two 2
doors where the seatbelt is located.
6 No. 83284-1/7
degree. The State also sought a deadly weapon enhancement and domestic
violence aggravator on the murder charges.
At trial, defense counsel’s opening statements suggested the defense
theory would revolve around the fact that Stutzman and McCollian used drugs,
and when they traveled south together, something went wrong causing McCollian
to flee. Counsel told the jury Stutzman “had a drug addiction,” and McCollian
“also ha[d] a drug addiction.” Counsel stated the two left the area together
heading south to Costco, and “for some reason they wanted to be at that back
parking lot at 3:00 a.m.” When “something went wrong in that back area of
Costco,” Stutzman was shot and McCollian “fled that area quickly” “trying to get
away.”
McCollian objected to the introduction of text messages from Stutzman to
Livingston as inadmissible hearsay. The following is the text message
conversation at issue:
Livingston: “R u okay” “Sorry missed your text” “I’m stopping by Lynnwood then to you okay”
Stutzman: “Mom?” “I need to leave” “Now” “He is smoked out” “He’s scaring me”
Livingston: “I’m a exit away” “Have Ashley with me we have to drop her off it’s on way” “Here”
Stutzman: “Ok don’t let her see where he lives park way down” “Be out in a couple mins”
7 No. 83284-1/8
Livingston: “I’m across next to van”
Stutzman: “Ok he is so out of his mind one sec please wait a sec”
Livingston: “Of course” “I can’t be patk like this please let’s go”
Stutzman: “Ok coming”
Livingston: “Car is trippin” “C’mon”
Stutzman: “I’m coming”
Livingston: “I’m parked to the right in left by blk truck”
The court ruled on the admissibility of each phrase and, initially, admitted
all the text messages. We discuss the basis for the rulings below.
During Livingston’s testimony, the State asked Livingston if Stutzman had
ever previously described McCollian as “smoked out” or “out of his mind.”
Livingston said Stutzman had not referred to McCollian in that way previously.
On defense’s re-cross, defense counsel asked Livingston, “[D]o you think or do
you know if [Stutzman] was going over to his home that night to get high
together?” Livingston responded that she did not know. The prosecution
objected and argued that the drug use by both the defendant and the victim
potentially has “kind of inherent prejudicial effect” under ER 403.
After a recess, the court expressed concern about admitting evidence of
drug use on the part of the defendant. The court also stated it was concerned
with the previous text message admission that McCollian was “smoked out.” The
court ruled it was striking the “He is smoked out” statement from the record,
including ordering the parties to redact it from an admitted exhibit of that text
8 No. 83284-1/9
message. The court also ruled it was striking the question that asked Livingston
if Stutzman had ever previously described McCollian as “smoked out” or “out of
his mind,” as well as Livingston’s answer. The court informed the parties it
planned to issue a curative instruction to the jury. The court further precluded the
parties from introducing any further evidence of drug usage on the part of the
defendant or Stutzman.
After the court’s ruling that the text “He is smoked out” should not have
previously been admitted, McCollian moved for a mistrial, arguing, “I don’t think
we can unring that bell.” The prosecution responded that “a curative instruction
can be given.” The trial court denied the motion for mistrial. The court then
instructed the jury:
The Court is striking from evidence the portion of Exhibit No. 36. You may recall that’s one of the alleged text message communications between the alleged victim and this witness. The comment, quote, “He is smoked out.” That is stricken from evidence. Furthermore, the question, “Had she ever described him on any prior occasion as being ‘smoked out’ or ‘out of his mind,’ anything like that?” And the answer, “No.” That is stricken from the evidence. And, as you know, as I previously advised you after you were administered the second oath and sworn in as jurors, when I strike evidence, that means you should not consider it in your deliberations, even though you may have heard or seen that evidence.
The parties redacted Exhibit No. 36 as ordered by the court.
Defense also objected to the State introducing testimony of Jonathan
Thomas regarding witnessing McCollian possessing firearms in his apartment
five days before the murder. The State explained Thomas would testify that
McCollian “displayed for him three firearms, two what [the Prosecutor
9 No. 83284-1/10
understood] to be more long guns, but one pistol that was identified to him as a
Glock, Glock hand gun.” Defense counsel argued that this evidence would be
governed by ER 404(b). The prosecutor disagreed and stated:
Our sole purpose of offering this is because it has direct relevance because it is close in time to the homicide and demonstrates that the defendant had access to a weapon that at least could be consistent with the one used in this case based on what we know, a firearm, and, in particular, a pistol.
The court replied, “The Court does not consider this proffered evidence as
evidence offered by the State pursuant to or in relation to Evidence Rule 404(b).”
Instead, the court stated that “the proper analysis is pursuant to Evidence Rule
403 and 401 and 402.” It then proceeded with its analysis, first deciding that
Thomas’ observation of McCollian in possession of a handgun within five days of
the incident was relevant evidence. It then conducted an ER 403 balancing test,
deciding to limit Thomas’ testimony to his observation of McCollian with a
handgun and not long weapons.
Thomas testified that on about December 4, he went over to McCollian’s
apartment and that McCollian showed him a “pistol” that he described as a
“Glock.” The court gave a limiting instruction proposed by the defense:
Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of the testimony of [Thomas]. You are not to consider the testimony of [Thomas] as it relates to whether or not the Defendant possessed a firearm, as charged in Count 2. Any discussion of the evidence during your deliberations must be consistent with this limitation.
Count II was the charge for unlawful possession of a firearm in the second
degree. The parties stipulated that McCollian had previously been convicted of a
felony and the trial court read the stipulation to the jury.
10 No. 83284-1/11
Defense counsel argued a defense theory in closing consistent with its
suggested theme from its opening statement. Defense counsel told the jury that
Stutzman and McCollian were in a car going to Tumwater, which was a two-hour
trip. She explained, “People don’t get in their car and go to Tumwater - - hey,
let’s go to Tumwater - - when they are from Everett and they have no ties.” She
stated that there was a purpose, but the purpose was unclear, because “you
don’t get in the car for two hours for no reason at 1:00, 1:30 in the morning after
standing up your mom. Something had to propel them. There had to be a
purpose, but we don’t know what it is.” She indicated that Stutzman had $140
cash, and despite having no ties to Tumwater, “somehow, conveniently, they find
a place in Tumwater that’s on a road in an area where there’s no surveillance
camera coverage.” Defense counsel mused “is it more reasonable that they
were directed there by somebody else and that they had a purpose for going
there? We don’t know who they were meeting. We don’t know why they were
meeting.” Defense counsel argued that McCollian failing to call the police could
be explained by the possibility that they were in Tumwater for an “illegal
purpose.” The jury found McCollian guilty on all counts.
At sentencing, the parties argued whether McCollian’s California
conviction of unlawful possession of a controlled substance should be counted
toward his offender score. The trial court found the out-of-state conviction
comparable, and it was included in McCollian’s offender score. The court
imposed a high-end sentence of 357 months in addition to a 24-month deadly
weapon enhancement amounting to 381 months, with 43 months for unlawful
11 No. 83284-1/12
possession of a firearm and 70 months on the arson in the second degree
charge to run concurrently. McCollian appeals.
DISCUSSION
Text Messages
McCollian first contends that the trial court erred in admitting Stutzman’s
text messages to her mother on the night of the incident because they were
inadmissible hearsay. 3 We disagree.
Hearsay is an out-of-court statement offered in evidence to prove the truth
of the matter asserted. ER 801(c); ER 802. A statement can be written, but it
must be intended as an assertion by the person making it. ER 801(a). Hearsay
is not admissible unless it falls under an exception. ER 802; ER 803. “Whether
a statement is hearsay depends upon the purpose for which the statement is
offered. Statements not offered to prove the truth of the matter asserted, but
rather as a basis for inferring something else, are not hearsay.” State v.
Crowder, 103 Wn. App. 20, 26, 11 P.3d 828 (2000). The trial court has great
discretion in determining the admissibility of evidence, and its ruling will be
reversed only upon a showing of manifest abuse of discretion. Id. at 25. Abuse
of discretion occurs when the court’s decision is “manifestly unreasonable or
based upon untenable grounds.” Id. at 25-26.
3On appeal, McCollian only provides argument regarding the specific text messages addressed in this opinion. We decline to address any other text messages between Stutzman and Livingston that were admitted by the trial court because McCollian does not provide a supportive substantive argument. RAP 10.3(a)(6).
12 No. 83284-1/13
A. “He’s scaring me”
Over defense objection, the trial court admitted the text message, “He’s
scaring me” as a state of mind exception to hearsay. McCollian claims
Stutzman’s state of mind was not relevant unless the case involved a particular
defense theory such as accident or self-defense, which was not at issue.
ER 803(a)(3) provides, “A statement of the declarant’s then existing state
of mind, emotion, sensation or physical condition. . .” is not excluded by the
hearsay rule. The state of mind exception applies (1) if there is some degree of
necessity to use out-of-court, uncross-examined declarations, and (2) if there is
circumstantial probability of the trustworthiness of the out-of-court, uncross-
examined declarations. State v. Parr, 93 Wn.2d 95, 98-99, 606 P.2d 263 (1980).
McCollian relies on Parr and State v. Cameron, 100 Wn.2d 520, 674 P.2d
650 (1983). In Cameron, where the defense’s theory was insanity, the court held
that hearsay testimony from the victim’s relatives indicating that the victim told
them prior to the incident that she was having problems with the defendant and
feared him, was not admissible under the then existing state of mind exception
because “the victim’s state of mind itself was not relevant to any material issue
before the jury. At best, it bears only a remote or artificial relationship to the legal
or factual issues actually raised and thus was inadmissible.” Cameron, 100
Wn.2d at 531. Insofar as the defense theory in Cameron was insanity, that case
is inapposite. However, even the Cameron court recognized that the question of
whether a victim’s state of mind is relevant depends on material issues before
the jury. Id. at 531.
13 No. 83284-1/14
The Parr court stated, “In a homicide case, if there is no defense which
brings into issue the state of mind of the deceased, evidence of fears of other
emotions is ordinarily not relevant.” Parr, 93 Wn.2d at 103. Further, it stated,
“But where a defense such as that of accident of self-defense is interposed, as is
the case here, courts have generally allowed the admission of the victim’s fears,
as probative of the question whether that person would have been likely to do the
acts claimed by the defendant.” Id. at 103. In Parr, the court determined that
because the defense’s theory of the case was accident, “the trial court should
allow the State to prove the victim’s declarations about his or her own state or
mind, where relevant, but should not permit it to introduce testimony which
describes conduct or words of the defendant.” Id. at 104.
While Parr involved a defense theory of accident, the Parr court’s holding
did not expressly restrict admissibility to cases where the defense was accident
or self-defense. In fact, the Parr court recognized that a defense can bring “into
issue the state of mind of the deceased,” and that courts should consider
whether the issue is “probative of the question whether that person would have
been likely to do the acts claimed by the defendant.” Id. at 103.
In the instant case, the defense’s opening statement painted a picture of
Stutzman and McCollian as two drug addicts who left the area together heading
south to Costco, and “for some reason they wanted to be at th[e] back parking lot
at 3:00 a.m.” when “something went wrong in th[e] back area of Costco.”
Stutzman gets shot and McCollian “fled th[e] area quickly” “trying to get away.”
The defense theory created a material issue as to whether Stutzman would
14 No. 83284-1/15
voluntarily leave with McCollian to head to the back of Costco in Tumwater
around 3:00 a.m. Thus, Stutzman stating that McCollian was scaring her
suggested that her state of mind at that time was such that she would not have
likely voluntarily gone with McCollian to Tumwater.
Under these facts, Stutzman’s state of mind was relevant and material.
The trial court did not abuse its discretion in admitting the text message, “He’s
scaring me.”
B. “He is so out of his mind”
The trial court, over defense objection, admitted Stutzman’s text message,
“Ok he is so out of his mind. One sec, please wait a sec,” under the present
sense impression exception to hearsay.
Statements that are present sense impressions, describing or explaining
an event or condition while the declarant was perceiving the event or condition,
or immediately thereafter, are not excluded as hearsay. ER 803(a)(1).
McCollian incorrectly cites Parr and Cameron for the proposition that the victim’s
present sense impressions are irrelevant in a homicide case unless a specific
defense places the decedent’s state-of-mind in issue. Neither Parr nor Cameron
addressed the present sense impression exception. McCollian cites no other
authority and makes no argument as to why the text message does not qualify
as present sense impression.
The court did not abuse its discretion when it admitted the “he is so out of
his mind” text message as a present sense impression hearsay exception.
15 No. 83284-1/16
C. “He is smoked out”
McCollian further contends that the trial court erred when it denied
McCollian’s motion for a mistrial after the jury heard testimony that Stutzman
sent the text message, “He is smoked out.”
The denial of a mistrial motion is reviewed for abuse of discretion.
State v. Rodriguez, 146 Wn.2d 260, 45 P.3d 541 (2002). A trial court abuses its
discretion in denying a motion for a mistrial only if its decision is manifestly
unreasonable or based on untenable grounds. State v. Allen, 159 Wn.2d 1,
10, 147 P.3d 581 (2006). In considering whether a motion for mistrial should
have been granted, the reviewing court considers (1) the seriousness of the
claimed irregularity, (2) whether the information imparted was cumulative of
other properly admitted evidence, and (3) whether admission of the illegitimate
evidence can be cured by a jury instruction. State v. Escalona, 49 Wn. App.
254, 255, 742 P.2d 190 (1987).
Here, the fact that the jury heard that McCollian was smoked out was not
a serious irregularity in context of the whole trial. Defense counsel described
Stutzman as a drug addict and implied that Stutzman and McCollian were going
to Tumwater for an “illegal purpose.” Defense counsel also stated in their
opening statement that after the events in Tumwater, McCollian “tried to stay
high.” Evidence of McCollian’s drug use was consistent with the defense’s
theory. The trial court struck the text message from the evidence as well as
other references in evidence suggesting drug usage by McCollian. Further, the
trial court properly delivered a curative instruction to the jury.
16 No. 83284-1/17
The trial court did not abuse its discretion in denying the defense’s motion
for a mistrial.
Handgun Testimony
McCollian also contends that the trial court erred when it admitted
Thomas’ testimony that McCollian had a handgun five days before Stutzman’s
death because it was propensity evidence under ER 404(b). McCollian was
charged with unlawful possession of a firearm and the parties stipulated that
McCollian had a previous felony conviction.
We first address whether the trial court erred by concluding it need not
conduct a ER 404(b) analysis because the State was offering the evidence for a
purpose other than propensity.
ER 404(b) “is a categorical bar to admission of evidence for the purpose of
proving a person’s character and showing that the person acted in conformity
with that character.” State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207
(2012). ER 404(b) expressly applies to “[e]vidence of other crimes, wrongs, or
acts.” Such evidence may be admissible for “other purposes such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” ER 404(b).
While the other purposes are sometimes referred to as “exceptions,” they
are not exceptions to the rule. 5 KARL B. TEGLAND, W ASHINGTON PRACTICE:
EVIDENCE § 404.9, at 497 (6th ed. 2021). Instead, there is one improper purpose
and multiple undefined proper purposes for which the evidence can be admitted.
Gresham, 173 Wn.2d at 420. “Only when the term ‘exception’ is read out of
17 No. 83284-1/18
context and the plain text of ER 404(b) is ignored does the possibility of
confusion arise.” Id. at 421.
Washington courts have developed a thorough analytical structure for the admission of evidence of a person's prior crimes, wrongs, or acts. To admit evidence of a person's prior misconduct, ‘the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.’
Id. (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). “The
third and fourth elements ensure that the evidence does not run afoul of ER 402
or ER 403, respectively. The party seeking to introduce evidence has the burden
of establishing the first, second, and third elements.” Gresham, 173 Wn.2d at
421. “It is because of this burden that evidence of prior misconduct is
presumptively inadmissible.” Id.
In the instant case, defense counsel argued that ER 404(b) governed the
admissibility of evidence of McCollian’s prior handgun possession. The State
disagreed, explaining that the “sole purpose” of offering the evidence is to
demonstrate that McCollian “had access to a weapon that at least could be
consistent with the one used” to kill Stutzman. The trial court agreed with the
State stating, “The Court does not consider this proffered evidence as evidence
offered by the State pursuant to or in relation to Evidence Rule 404(b).” Instead,
it engaged in an analysis pursuant to ER 403, 401, and 402. But the State
providing another purpose as to why it was offering the evidence did not remove
the danger of introducing presumptively inadmissible prior misconduct. The trial
18 No. 83284-1/19
court incorrectly concluded that an ER 404(b) analysis did not apply. 4 It did,
however, conduct a balancing test on the record.
The court found the evidence probative because the issue “appears to be
who fired the gun, and it is relevant that, four or five days prior [to] this incident, it
is alleged that Mr. McCollian was in possession of a handgun. So it’s highly
probative.” In balancing the prejudicial effect, the trial court did not appear to
articulate anything more than a conclusory statement. The court reasoned,
“Frankly, the Court doesn’t see any prejudice to the defendant. Clearly – let me
rephrase that, an unfair prejudice to the defendant. Clearly it’s prejudicial. It’s
harmful to the defendant, but it’s not unfairly – and the Court, for purposes of the
record emphasizes the term ‘unfairly’ – prejudicial to Mr. McCollian.”
“Although evidence of weapons entirely unrelated to the crime is
inadmissible, if the jury could infer from the evidence that the weapon could have
been used in the commission of the crime, then evidence regarding the
possession of that weapon is admissible.” State v. Luvene, 127 Wn.2d 690, 708,
903 P.2d 960 (1995) (emphasis added).
McCollian cites State v. Hartzell for the proposition that the evidence was
not admissible because the State did not establish that the handgun Thomas
witnessed was the handgun used to shoot Stutzman. 153 Wn. App. 137, 221
P.3d 928 (2009). In Hartzell, defendants were convicted of armed assault and
unlawful possession of a firearm for shooting into an apartment occupied by a
4The court did not determine, as part of an ER 404(b) analysis, whether, by a preponderance of the evidence, the misconduct occurred. McCollian does not challenge on this basis.
19 No. 83284-1/20
woman and her daughter. Id. at 145. “Investigators were able to link [the
defendants] to the crime by establishing that the guns they possessed in two
separate incidents were the same guns used to shoot into the apartment.” Id.
Unlike the gun evidence in Hartzell, the handgun testimony in the instant
case did not allow for even a reasonable inference that the handgun Thomas
saw McCollian possess was the same gun that was used to kill Stutzman. Even
the State explained that it was proof that McCollian had access to a weapon that
“at least could be” consistent with the one used. The State could not even argue
that the gun was consistent with the one used because no evidence linked the
type of handgun Thomas saw with the type of handgun that was actually used to
kill Stutzman.
We question whether the jury could reasonably infer from the evidence,
that the handgun Thomas saw McCollian possess, could have been the handgun
used in the commission of the crime. The probative value of the Thomas
testimony was, at most, extremely low. And if the handgun was completely
unrelated to the crime, the concern for prejudice is high. “Evidence of weapons
is highly prejudicial, and courts have ‘uniformly condemned . . . evidence of . . .
dangerous weapons, even though found in the possession of a defendant, which
have nothing to do with the crime charged.’ ” State v. Freeburg, 105 Wn. App.
492, 501, 20 P.3d 984 (2001).
Regardless, any error in the trial court for not conducting an ER 404(b)
analysis and admitting the Thomas testimony was harmless. “It is well settled
that the erroneous admission of evidence in violation of ER 404(b) is analyzed
20 No. 83284-1/21
under the lesser standard for nonconstitutional error.” Gresham, 173 Wn.2d at
433. The question, then, is whether, within reasonable probabilities, had the
error not occurred, the outcome of the trial would have been materially affected.
Id.
McCollian relies on Freeburg to argue admission of the handgun
testimony was not harmless. In Freeburg, this court held that the trial court erred
by admitting evidence that the defendant possessed a handgun at the time of
arrest around three years after the charged crime of murder for the purpose of
showing flight and demonstrating consciousness of guilt. 105 Wn. App. at 500-
01. Nothing connected the handgun found in 1997 to the victim’s death in 1994.
Id. at 501. At trial, the jury heard conflicting testimony as to who had the gun
involved in the altercation. Id. at 495-96. The State’s key witness was the
victim’s girlfriend. Id. at 495. Freeburg testified that he acted in self-defense. Id.
at 496. The court could not characterize the admission of the gun as harmless
absent a limiting instruction. Id. at 502. The court reasoned that “jurors could
well have regarded the evidence Freeburg had a gun when arrested not as
further evidence of flight but rather as tending to show he was a ‘bad man,’ or
had a propensity to carry guns, or was likely to have brought a gun [to the scene
of the crime].” Id. at 502.
The evidence of the underlying crime in Freeburg is far different than the
evidence against McCollian. The jury in Freeburg had to decide which witness to
believe and had conflicting explanations of what happened.
21 No. 83284-1/22
In the instant case, a substantial amount of undisputed evidence in the
record supports McCollian’s convictions. McCollian argues that without the
testimony from Thomas, “there would have been no evidence of any gun aside
from the evidence of the shooting death itself.” But the evidence of the shooting
death connected McCollian. McCollian did not dispute that he rented the Toyota
Camry and that he drove it with Stutzman the morning Stutzman was murdered.
Forensic evidence concluded Stutzman was likely shot while sitting in the front
passenger seat of that car. Detectives found a casing and a fired bullet in the B
pillar of the car that was consistent with the trajectory of the gunshot that killed
Stutzman. The jury could find that Stutzman would not have gone willingly with
McCollian, given her state of mind at the time she wanted to leave McCollian’s
apartment. Phone records and hotel security video provided circumstantial
evidence that McCollian drove the Camry south with Stutzman, dumped her body
and drove the Camry back. A jury could find that McCollian burned the Camry
and later reported it stolen as an attempt to destroy evidence of the murder.
It is not reasonably probable that the outcome of the trial would have been
materially affected if Thomas’ handgun testimony had been excluded.
Credibility Comment
McCollian contends that a police officer commented on McCollian’s
credibility, invading McCollian’s right to a fair and impartial jury. We disagree.
Generally, no witness may offer testimony in the form of an opinion
regarding the guilt or veracity of the defendant. State v. Kirkman, 159 Wn.2d
918, 927, 155 P.3d 125 (2007). Such testimony is unfairly prejudicial to the
22 No. 83284-1/23
defendant because it invades the exclusive province of the jury. Id. In
determining whether testimony amounts to impermissible opinion testimony,
courts consider the type of witness involved, the specific nature of the testimony,
the nature of the charges, the type of defense, and the other evidence before the
trier of fact. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). In
State v. Jones, this court concluded that an officer’s statement that the defendant
was lying was improper opinion testimony. 117 Wn. App. 89, 91-92, 68 P.3d
1153 (2003). “Testimony that is not a direct comment on the defendant’s guilt or
on the veracity of a witness, is otherwise helpful to the jury, and is based on
inferences from the evidence is not improper opinion testimony.” City of Seattle
v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
In the instant case, the officer described the form that McCollian filled out
when McCollian reported the theft of his Toyota Camry. The officer stated,
“There’s the perjury statement on there that we always have the person read.
Basically, it says that you’re not making a false preliminary report, that you
understand that making a false police report is a crime.” After the defense
objected on the basis of improper testimony and veracity of a witness, the
prosecutor explained, “I’m not planning to ask him any questions about
anybody’s veracity. He was just noting what the form had printed on it.” The
court overruled the objection, and the officer continued, “. . . perjury is also a
crime, that’s kind of the gist of it.”
The officer never made a direct comment on McCollian’s veracity. His
testimony included statements of fact including a description of the perjury
23 No. 83284-1/24
statement on the police report, a description of how he reminded McCollian about
the perjury statement he signed after the vehicle was found, and a description of
McCollian’s demeanor and reactions. None of this testimony was improper.
After the vehicle was located, the officer described McCollian’s reaction to
the news, saying McCollian got increasingly “sort of aggressive and defensive on
the phone.” The officer responded to McCollian and “reminded him that making
a false police report is a crime . . .” The prosecutor asked the officer, “Did you
feel at that point that you had accused him of anything?” The officer responded,
“No. I had not.”
To the extent that the officer’s reminder can be interpreted as the officer
not believing the veracity of McCollian’s statement, the error of including this
statement was harmless. Once again, evidentiary error is not of constitutional
magnitude. “[E]rror is prejudicial only if, within reasonable probabilities, the
outcome of the trial would have been materially affected had the error not
occurred.” State v. Kelly, 102 Wn.2d 188, 199, 685 P.2d 564 (1984).
The officer’s comment did not materially affect the outcome of the trial in
light of all of the other evidence presented as discussed above.
McCollian further contends that this issue is one of prosecutorial
misconduct because it is improper for a prosecutor to seek to compel a witness’
opinion as to whether another witness is telling the truth. As discussed, the
prosecutor did not seek to compel the officer’s opinion as to whether McCollian
was telling the truth.
24 No. 83284-1/25
Cumulative Error
McCollian asserts that cumulative error should result in remand for retrial.
“The accumulation of errors may deny the defendant a fair trial and therefore
warrant reversal even where each error standing alone would not.” State v.
Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012). The cumulative error doctrine
does not apply where there are few errors which have little, if any, effect on the
result of the trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006).
“The defendant bears the burden of proving an accumulation of error of sufficient
magnitude that retrial is necessary.” State v. Yarbrough, 151 Wn. App. 66, 98,
210 P.3d 1029 (2009). The doctrine does not apply in the absence of prejudicial
error. State v. Price, 126 Wn. App. 617, 655, 109 P.3d 27 (2005). For the
reasons already discussed, the cumulative error doctrine does not apply.
Offender Score Calculation
McCollian also contends that McCollian’s California conviction for
possession of a controlled substance should not be included in his offender score
in light of Blake, 197 Wn.2d at 170. 5 A prior conviction that is constitutionally
invalid on its face may not be included in the offender score. State v. Ammons,
105 Wn.2d 175, 187-188, 713 P.2d 719 (1986). “Out-of-state convictions must
be comparable to a valid Washington offence to be included in the calculation of
the offender score.” State v. Markovich, 19 Wn. App. 2d 157, 173, 492 P.3d 206
5 McCollian also contends that the California conviction was not legally comparable to the Washington State offense and should not have been considered in his offender score calculation for that reason. The State did not concede on this point. However, we need not address this claim because of the State’s concession under Blake.
25 No. 83284-1/26
(2021). The State agrees that remand for resentencing without the California
possession of methamphetamine charge is appropriate. Accordingly, we remand
for resentencing.
Imposition of Legal Financial Obligations
The trial court sentenced McCollian to 36 months of community custody.
The judgment and sentence indicates that McCollian must “pay supervision fees
as determined by” the Department of Corrections (DOC). McCollian contends
that the trial court’s imposition of community custody supervision fees should be
stricken from the judgment and sentence because the court declared McCollian
indigent.
RCW 10.01.160(3) provides that the trial court shall not order a defendant
to pay costs if a defendant is indigent as defined in RCW 10.101.010(3)(a)-(c).
Further, RCW 9.94A.760(1) provides that the trial court cannot order costs as
described in RCW 10.01.160 if the defendant is indigent. Community custody
supervision fees are not considered costs as contemplated in RCW 10.01.160(3).
State v. Spaulding, 15 Wn. App. 2d 526, 537, 476 P.3d 205, 211 (2020). RCW
10.01.160(2) provides, “Costs shall be limited to expenses specially incurred by
the state in prosecuting the defendant or in administering the deferred
prosecution program under chapter 10.05 RCW or pretrial supervision.”
The community custody supervision assessment is imposed under RCW
9.94A.703(2)(d), which states, “Unless waived by the court, as part of any term of
community custody, the court shall order an offender to pay supervision fees as
26 No. 83284-1/27
determined by the department.” A community custody supervision assessment is
not included in the definition of costs.
Because the supervision fees are waivable by the trial court, they are
discretionary legal financial obligations (LFOs). State v. Lundstrom, 6 Wn. App.
2d 388, 396 n.3, 429 P.3d 1116 (2018). Nothing prohibits a trial court from
exercising its discretion and waiving the supervision fees if the defendant is
Our Supreme Court has previously discussed the negative impacts of
LFOs, including the serious negative consequences on employment, housing,
and finances. State v. Blazina, 182 Wn.2d 827, 837, 344 P.3d 680 (2015).
Additionally, LFO debt can impact credit ratings, making it difficult to find secure
housing. Id. “The barriers that LFOs impose on an offender’s reintegration to
society are well documented . . . and should not be imposed lightly merely
because the legislature has not dictated that judges conduct the same inquiry
required for discretionary costs.” State v. Clark, 191 Wn. App. 369, 376, 362
P.3d 309 (2015).
However, the trial court never found McCollian indigent. To support his
claim of indigency, McCollian cites to an Order of Indigency filed on May 9, 2019,
which states, “The court finds that the defendant was previously declared
indigent. . .” However, the court did not engage in a colloquy at sentencing to
make a determination if McCollian was indigent.
The supervision fees were ordered by the trial court via the form language
in the judgment and sentence that required the defendant to pay supervision fees
27 No. 83284-1/28
as determined by DOC. This form presumes the judge orders the supervision
fees.
None of the parties or the trial court made any mention of the community
custody supervision fees during sentencing. We are unable to determine based
on this record whether the trial court intentionally imposed the supervision fees
and whether McCollian was indigent. Therefore, we remand for the parties to
clarify at resentencing.
CONCLUSION
The trial court properly admitted the victim’s text messages as an
exception to hearsay under state of mind and present sense impression. The
trial court did not err in denying McCollian’s motion for mistrial. The trial court
incorrectly concluded that an ER 404(b) analysis did not apply to the Thomas
handgun testimony. However, any error in failing to conduct a 404(b) analysis
and admitting the testimony was harmless. McCollian failed to show that an
officer was questioned about or testified to his personal opinion about
McCollian’s credibility. The cumulative error doctrine did not apply. The parties
agree that remand for resentencing is appropriate in light of Blake. We also
remand for the parties to clarify with the trial court if it intended to impose the
community custody supervision fees.
Affirm and remand for resentencing.
WE CONCUR: