IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 81033-2-I v. UNPUBLISHED OPINION NATASHIA MONIQUE BRITT,
Appellant.
DWYER, J. — Natashia Britt appeals from her convictions for one count of
assault of a child in the first degree, two counts of assault of a child in the second
degree, and two counts of communicating with a minor for immoral purposes.
She raises numerous contentions concerning the validity of her convictions and
the imposition of a criminal filing fee and a DNA collection fee. We affirm the
convictions, but remand to the trial court for a determination of whether Britt must
pay a DNA collection fee and to strike the criminal filing fee.
I
Britt has three children, J.B., B.C., and D.A. Prior to 2015, the children
lived together with Britt in Des Moines. During this time, Britt whipped J.B., then
approximately 10 years old, and B.C., then approximately 8 years old, with a belt
on multiple occasions. Britt forced the children to remove their clothing before
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81033-2-I/2
each whipping. These whippings left visible bruise marks on the childrens’
bodies that would last for days, which Britt would instruct the children to hide
from others.
B.C.’s bruises were discovered by his school nurse, resulting in the
Children’s Administration of the Department of Social and Health Services (CPS)
removing all three children from Britt’s care. CPS placed the children with Britt’s
aunt, Linda Rogers. Rogers never physically disciplined the children, but did
observe scarring on B.C.’s body.
Then, in 2016, the children were returned to Britt, who had moved to
Tacoma. Britt resumed her prior behavior, whipping both J.B. and B.C. with a
cable cord on multiple occasions. During one particular whipping, Britt directed
B.C. to strip naked, used packing tape to tape B.C.’s mouth shut, taped B.C.’s
hands behind his back, and taped his legs together, then whipped his naked
body with the cord. This left bruises on B.C.’s back, buttocks, and hamstring.
During this time, Britt also beat, and in one occasion strangled, B.C. If
B.C. resisted the beatings, Britt would enlist J.B. to help restrain B.C. so that she
could beat him. These beatings sometimes left scars on the boys’ bodies.
In addition to the physical abuse, Britt also showed the boys sexually
explicit material, including a pornographic video entitled “Two Girls, One Cup.”
Later in 2016, CPS once again removed J.B. and B.C. from Britt’s care,
placing them with Regina and Norman Golden, Britt’s mother and stepfather, who
were already caring for Regina’s other daughter, A. However, because Regina
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Golden would not participate in a background check, CPS explained that she
would have to move out of the home.
J.B. told Regina Golden about the beatings and whippings, and showed
her the pornographic video that Britt had showed the boys. Regina Golden then
reported the abuse to the boys’ assigned social worker, which resulted in the
Tacoma Police Department opening an investigation into the abuse allegations.
During this investigation, Detective William Muse conducted multiple forensic
interviews of both J.B. and B.C., and also interviewed Britt. During her interview
with the detective, Britt initially denied ever hitting the children, but eventually
admitted that she would “[p]op the children on their legs.” By a “pop,” Britt meant
an open-handed strike.
The State subsequently charged Britt with one count of assault of a child
in the first degree, two counts of assault of a child in the second degree, two
counts of communicating with a minor for immoral purposes, one count of sexual
exploitation of a minor, and one count of child molestation in the first degree.
Britt informed the State that she would pursue a defense of reasonable parental
discipline. The matter was called for trial in September 2017.
During jury selection, the following exchange occurred with juror 26:
[Prosecutor:] Now, in cases where it’s heavy with witness testimony, I anticipate you’ll be told that you’ll rarely, if ever, get to hear testimony twice. If you’re allowed to take notes, is there anyone here who says, you know what, even if I take notes, I’m not going to be able to retain this evidence over the course of three weeks? Anyone here feel that? It’s okay, we just need to know that. Juror No. 26. JUROR NO. 26: I’m not really good at taking notes and whatever I write down usually is not – [Prosecutor]: So what if you’re able to afterwards talk with other jurors and you can all compare what you recall, maybe be refreshed?
3 No. 81033-2-I/4
Would you -- do you feel that you could, with those assistances, be able to recall testimony that occurred maybe two, three weeks ago? JUROR NO. 26: I don’t think so.
Subsequently, no party challenged, for cause or through the use of a preemptory
challenge, juror 26 and she was seated on the jury.
At trial, the State presented testimony from several witnesses, including
B.C., J.B., Detective William Muse, corrections officer Torvald Pearson, Linda
Rogers, Norman Golden, and Regina Golden’s mother, Christine Kilpatrick.
During Rogers’ testimony, the State asked her whether she had ever hit
B.C. After Rogers answered in the negative, the State followed up by asking
whether she had ever wanted to hit B.C. Over defense objection, the trial court
permitted Rogers to again answer in the negative.
During Officer Pearson’s testimony, the State admitted several recordings
of telephone calls made by Britt while she was in jail. On one of these calls, Britt
admitted to showing the boys a pornographic video. The State also attempted to
admit testimony explaining that the recordings played for the jury were only
excerpts of all of the recorded calls and describing the total length of all the calls.
However, defense counsel successfully objected to the admission of this
testimony. Later, the defense stipulated to informing the jurors that the
recordings presented to them were excerpts from all of the recorded telephone
calls.
Despite numerous attempts to locate her to compel her testimony by
subpoena, Regina Golden did not testify at trial. Multiple State witnesses,
including the boys and Christine Kilpatrick, testified that Regina Golden had been
out of state for the three months leading up to and including the month of trial.
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However, the defense presented testimony from a defense investigator asserting
that the investigator had successfully delivered a subpoena to Regina Golden in
Washington only a few days before the start of trial.
Following the presentation of evidence, the jury found Britt guilty of assault
of a child in the first degree, both counts of assault of a child in the second
degree, and both counts of communicating with a minor for an immoral purpose.
Sentences within the standard range for her offenses were imposed.
Britt appealed to Division Two, which transferred the matter to us for
resolution. Subsequently, the trial court entered an amended judgment,
modifying the conditions of Britt’s sentence by removing several restrictions that
had previously been set forth in the original judgment.
II
Britt first contends that the trial court erred by failing to, sua sponte,
dismiss juror 26 because, she asserts, the juror’s cognitive inability disqualified
her from jury service. We disagree.
We review a trial court’s decision regarding whether to excuse a juror for
an abuse of discretion. State v. Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72
(2005); State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). “A trial court
abuses its discretion when its decision ‘is manifestly unreasonable or based upon
untenable grounds or reasons.’” Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-
69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940
P.2d 1239 (1997)).
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Generally, all United States citizens who are at least 18 years old, are able
to communicate in English, and reside in the county in which they are summoned
to serve, are qualified to serve as jurors in Washington. RCW 2.36.070. It is a
trial judge’s duty, however, to “excuse from further jury service any juror, who in
the opinion of the judge, has manifested unfitness as a juror by reason of bias,
prejudice, indifference, inattention or any physical or mental defect or by reason
of conduct or practices incompatible with proper and efficient jury service.” RCW
2.36.110.
“While a trial court may have a duty to sua sponte intercede where actual
bias is evident or where the defendant is not represented by counsel, this duty
must also be balanced with the defendant’s right to be represented by competent
counsel.” State v. Phillips, 6 Wn. App. 2d 651, 667, 431 P.3d 1056 (2018),
review denied, 193 Wn.2d 1007 (2019). A trial court must therefore exercise
caution before injecting itself into the jury selection process, because the
decision to select or dismiss a juror is often “based on the trial counsel’s
experience, intuition, strategy, and discretion.” State v. Lawler, 194 Wn. App.
275, 287, 374 P.3d 278 (2016).
Britt asserts that the trial judge should have, sua sponte, dismissed juror
26 because she manifested unfitness as a juror by reason of mental defect.
Specifically, Britt asserts that the following exchange required dismissal:
[Prosecutor:] Now, in cases where it’s heavy with witness testimony, I anticipate you’ll be told that you’ll rarely, if ever, get to hear testimony twice. If you’re allowed to take notes, is there anyone here who says, you know what, even if I take notes, I’m not going to be able to retain this evidence over the course of three weeks? Anyone here feel that? It’s okay, we just need to know that. Juror No. 26.
6 No. 81033-2-I/7
JUROR NO. 26: I’m not really good at taking notes and whatever I write down usually is not – [Prosecutor]: So what if you’re able to afterwards talk with other jurors and you can all compare what you recall, maybe be refreshed? Would you -- do you feel that you could, with those assistances, be able to recall testimony that occurred maybe two, three weeks ago? JUROR NO. 26: I don’t think so.
According to Britt, during this exchange juror 26 manifested unfitness by
unequivocally stating that she would not be able to remember testimony that
occurred weeks in the past and, therefore, the trial court abused its discretion by
not dismissing her regardless of the absence of any challenge raised by either
party.
Britt is wrong. First, juror 26 did not unequivocally state that she would be
unable to recall testimony due to a mental defect. When placed in the context of
her answers to a written juror questionnaire—in which she stated that she did not
have any physical or mental defects she thought justified excusing her from
service and in which she explained that she had graduated from high school,
attended some college, had worked for Boeing for the previous six years, and
had previously served on a jury—it is plain that juror 26 was simply stating an
honest, and typical, belief that she thought that she would have difficulty
remembering specific testimony weeks after hearing it. She plainly was not
stating unequivocally that she had a mental defect warranting dismissal from jury
service.
Second, Britt never challenged, for cause or through a preemptory
challenge, juror 26.1 Many other jurors were challenged and dismissed, so the
1 The State contends that Britt therefore failed to properly preserve this claim of error for appeal. However, under RAP 2.5(a)(3) a party may raise a “manifest error affecting a
7 No. 81033-2-I/8
silence of counsel as regarding juror 26 weighs heavily against a sua sponte
dismissal. While a trial court “may have a duty to sua sponte intercede where
actual bias is evident or where the defendant is not represented by counsel,”
here the defendant was represented by counsel who interposed numerous
challenges to potential jurors. Phillips, 6 Wn. App. 2d at 667. The trial court
could have inferred from defense counsel’s silence that Britt wanted juror 26 to
serve on the jury, and it would have been improper for the court to intervene in
the defense’s strategic decision-making.
The trial court was not required to, sua sponte, dismiss juror 26.
III
Britt next contends that the trial court erred by preventing defense
counsel, on cross-examination of certain State witnesses during the State’s case
in chief, from eliciting evidence that Regina Golden remained in Washington.
Britt contends that this prevented her from attacking the credibility of prosecution
witnesses who asserted that Regina Golden was not in Washington, thereby
violating her constitutional right to present a defense under the Sixth Amendment
to the United States Constitution. Britt concedes that she was later permitted to
introduce this evidence in her case in chief and to argue her theory to the jury,
but nevertheless contends that the trial court’s refusal to permit her to introduce
constitutional right” for the first time on appeal. “A constitutional error is manifest where there is prejudice, meaning a plausible showing by the appellant that the asserted error had practical and identifiable consequences in the trial.” State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015) “Criminal defendants have a federal and state constitutional right to a fair and impartial jury.” Irby, 187 Wn. App. at 192 (citing Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995)). The presence of an unqualified juror violates this right, and this error is prejudicial, requiring a new trial. See Irby, 187 Wn. App. at 193 (requiring new trial when record established that juror was actually biased, and therefore unqualified, but was seated without challenge).
8 No. 81033-2-I/9
this evidence through cross-examination during the State’s case in chief requires
reversal. We disagree.
“The Sixth Amendment of the United States Constitution and article I,
section 22 of the Washington Constitution guarantee a criminal defendant a
meaningful opportunity to present a defense.” State v. Giles, 196 Wn. App. 745,
756, 385 P.3d 204 (2016) (citing State v. Jones, 168 Wn.2d 713, 720, 230 P.3d
576 (2010)). This right to present a defense is not absolute. Jones, 168 Wn.2d
at 720. “Defendants have a right to present only relevant evidence, with no
constitutional right to present irrelevant evidence.” Jones, 168 Wn.2d at 720.
“[I]f relevant, the burden is on the State to show the evidence is so prejudicial as
to disrupt the fairness of the fact-finding process at trial.” State v. Darden, 145
Wn.2d 612, 622, 41 P.3d 1189 (2002). “The State’s interest in excluding
prejudicial evidence must also ‘be balanced against the defendant’s need for the
information sought,’ and relevant information can be withheld only ‘if the State’s
interest outweighs the defendant’s need.’” Jones, 168 Wn.2d at 720 (quoting
Darden, 145 Wn.2d at 622). However, in instances when a defendant seeks to
introduce relevant evidence of high probative value “it appears no state interest
can be compelling enough to preclude its introduction.” State v. Hudlow, 99
Wn.2d 1, 16, 659 P.2d 514 (1983).
“We review the trial court’s evidentiary rulings for abuse of discretion and
defer to those rulings unless ‘no reasonable person would take the view adopted
by the trial court.’” State v. Clark, 187 Wn.2d 641, 648, 389 P.3d 462 (2017)
(internal quotation marks omitted) (quoting State v. Atsbeha, 142 Wn.2d 904,
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914, 16 P.3d 626 (2001)). “If the court excluded relevant defense evidence, we
determine as a matter of law whether the exclusion violated the constitutional
right to present a defense.” Clark, 187 Wn.2d at 648-49 (citing Jones, 168
Wn.2d at 719).
Our Supreme Court recently considered the constitutional right to present
a defense in State v. Arndt, 194 Wn.2d 784, 453 P.3d 696 (2019). Therein, the
court considered whether limitations imposed by the trial court on the testimony
elicited from a certified arson investigator, Dale Mann, violated the defendant’s
right to present a defense. Arndt, 194 Wn.2d at 796, 812-814. In concluding that
the defendant’s right to present a defense was not violated, the court noted (1)
that the defendant’s “proffered evidence was not excluded entirely and Mann was
able to testify at length for the defense” and (2) that the defendant “was able to
advance her defense theory.” Ardnt, 194 Wn.2d at 813-14.
“Evidence is relevant when it is both material—the fact to be proved ‘is of
consequence in the context of the other facts and the applicable substantive
law’—and probative—the evidence has a ‘tendency to prove or disprove a fact.’”
Giles, 196 Wn. App. at 757 (internal quotation marks omitted) (quoting State v.
Sargent, 40 Wn. App. 340, 348 n.3, 698 P.2d 598 (1985)). Relevant evidence is
generally admissible. Hamblin v. Castillo Garcia, 9 Wn. App. 2d 78, 87, 441 P.3d
1283 (2019) (citing Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn.
App. 702, 729, 315 P.3d (2013)). The party seeking to admit evidence bears the
burden of establishing its relevance. See Giles, 196 Wn. App. at 757 (“As with all
evidence, the proponent bears the burden of establishing the admissibility of
10 No. 81033-2-I/11
‘other suspect’ evidence.”); State v. Yokel, 196 Wn. App 424, 433, 383 P.3d 619
(2016). However, relevant evidence may be excluded when “its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” ER 403. “The Rules of
Evidence favor admitting relevant evidence, so the party opposing admission
bears the burden of establishing” that the probative value of relevant evidence is
substantially outweighed by such considerations. Hamblin, 9 Wn. App. 2d at 87
n.22.
The parties herein agree that Britt was able to introduce all of the
substantive evidence regarding Regina Golden’s whereabouts that was
necessary to support Britt’s defense theory that the State’s witnesses were not
credible because they lied about Regina Golden’s whereabouts. Just as the
defendant in Arndt was able to advance her defense theory, so was Britt able to
advance her defense theory concerning the whereabouts of Regina Golden and
to argue that theory to the jury. Thus, as in Arndt, Britt’s right to present a
defense was not violated by any of the challenged evidentiary rulings. 2
2 We further note that Britt has no right to dictate the manner and order in which evidence is presented at trial. ER 611(a) gives that authority to the trial court, specifically authorizing the trial court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Thus, the rules of evidence authorize trial courts to control when witnesses testify and when evidence is presented. This includes the ability to limit cross-examination when sufficient evidence of the fact at issue has already or will be placed before the jury by other means. ROBERT H. ARONSON & MAUREEN A. HOWARD, THE LAW OF EVIDENCE IN W ASHINGTON, § 1.06(1) n.5 (5th ed. 2017) (citing United States v. Jackson, 756 F.2d 703 (9th Cir. 1985)).
11 No. 81033-2-I/12
Furthermore, Britt fails to establish that the trial court abused its discretion
in either of the two challenged evidentiary rulings. Britt contends that the trial
court made two specific erroneous evidentiary rulings that deprived her of her
right to present a defense: (1) during the cross-examination of Detective William
Muse, the trial court upheld an objection to a question asking if Regina Golden
had informed the detective when she planned to return to Washington, (2) during
the cross-examination of Christine Kilpatrick, the trial court sustained an
objection to eliciting testimony regarding the parentage of Regina Golden’s
daughter, A.3
As to the first ruling, when asked to explain the relevance of an out of
court statement from Regina Golden to Detective Muse regarding plans to return
to Washington, defense counsel answered and engaged in the following
exchange with the court:
[Defense Counsel]: Bias, Your Honor. THE COURT: . . . I’m going to sustain as to relevance, if there’s some indication of bias that would be used to impeach any testimony or any out-of-court statements made by Ms. Golden, but there’s been no out-of-court statements admitted for the truth of the matter asserted . . . there’s nothing to impeach. [Defense Counsel]: Relevance, in case we manage to get Ms. Golden? THE COURT: I’m sustaining the objection as to relevance at this time. If you have reason to believe that she’s likely to be produced, we’ll re-examine the issue. [Defense Counsel]: Okay.
3 Britt also contends that two additional evidentiary rulings during the cross-examination
of State’s witnesses were improper. However, the record establishes that in both instances, following brief discussions with opposing counsel and the court, defense counsel opted to withdraw the questions to which the State objected, stating that the desired testimony would be obtained from other witnesses rather than fully explaining the purpose behind the questioning. Defense counsel’s choice does not constitute an abuse of the trial court’s discretion.
12 No. 81033-2-I/13
Britt asserts that this ruling was erroneous because the bias defense
counsel sought to establish through the testimony was not bias on the part of
Regina Golden, but bias on the part of other witnesses who defense counsel
asserted were lying about Regina Golden’s whereabouts. However, the record
plainly shows that defense counsel did not provide such an explanation to the
trial court at the time. Indeed, defense counsel actually reinforced the court’s
apparent belief that the defense sought to impeach Regina Golden’s statements
by requesting that the court conclude that the testimony was relevant in case
Regina Golden testified. Because Regina Golden had not testified and no out of
court statements by Regina Golden had been admitted for the truth of the matter
asserted therein at the time of this ruling, defense counsel failed to establish the
relevance of any out of court statement by Regina Golden regarding plans for
returning to Washington.4 Therefore, the trial court’s ruling was not erroneous.
As to the second ruling, the trial court analyzed the issue of whether the
defense could elicit testimony regarding the parentage of Regina Golden’s
daughter, A, under ER 403 and concluded that the probative value of the
evidence was substantially outweighed by the risk of confusing the issues for the
jury. In explaining why the defense sought to elicit this testimony, defense
counsel stated that
[A] is not the daughter of Norman Golden. That is a fact that we are already very well aware of. The issue is that because we don’t believe it is necessarily—how do I want to say this—we don’t believe that—we believe that there’s a bias inherent in them not wanting to say that Ms. Golden has been here the entire time, okay,
4The proponent of evidence bears the burden of explaining to the trial court the legal theory under which the proponent believes the evidence is admissible. Giles, 196 Wn. App. at 759-60 n.6. Thus, any lack of clarity is the fault of the proponent.
13 No. 81033-2-I/14
and that they are intentionally trying to promulgate that. We don’t believe that it is logical or truthful that Ms. Golden has somehow left her daughter with the stepfather and has completely abandoned the home and is no longer parenting her own daughter simply because of some CPS order in regards to the other three children, and so we are trying to establish that Mr. Golden is not, in fact, the parent of [A], has no parental rights with [A], has no ability to sign any sort of emergency paperwork or anything else that may come about, and that this witness was—so we are trying to establish that link, and that’s what Defense was doing.
In essence, defense counsel sought to support an inference that because
Regina Golden’s daughter was not Norman Golden’s daughter and was still in
Washington, Regina Golden was likely to still have been in Washington to take
care of her, and therefore the State witnesses that asserted that she was
elsewhere were likely lying and were therefore not credible as to their
accusations against Britt. Given this extensive inferential chain, the trial court’s
conclusion that the probative value of this evidence was substantially outweighed
by the risk of confusing the jury plainly does not rise to the level of an abuse of
discretion. See State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (noting
evidence could confuse the issues for the jury by focusing attention away from
the charged burglary); ER 403. Indeed, Britt does not actually assert that the trial
court was wrong to conclude that the complex inferential chain posed a
substantial risk of confusing the issues for the jury.
We further note that the trial court’s conclusion is strengthened by the fact
that, prior to this ruling, the defense had informed the trial court that it was able to
present a witness that could testify to having actually met with Regina Golden in
Washington during the time the State’s witnesses asserted that she was not in
Washington. This rendered the elaborate inferential chain pertaining to the
14 No. 81033-2-I/15
parentage of Regina Golden’s daughter unnecessary to enable the defense to
attack the credibility of the State’s witnesses. Britt has therefore failed to
establish that the trial court’s ruling was an abuse of discretion.
IV
Britt next asserts that her convictions for assault against B.C. should be
reversed because the trial court erroneously admitted testimony from Linda
Rogers, stating that Rogers had never wanted to hit B.C. This is so, Britt asserts,
because the evidence was not relevant to whether Britt had assaulted B.C. and
was prejudicial in that it undermined Britt’s defense that her disciplining of B.C.
was reasonable and moderate. While we agree that the evidence was not
relevant, we conclude that its admission was harmless.
Again, “[e]vidence is relevant when it is both material—the fact to be
proved ‘is of consequence in the context of the other facts and the applicable
substantive law’—and probative—the evidence has a ‘tendency to prove or
disprove a fact.’” Giles, 196 Wn. App. at 757 (internal quotation marks omitted)
(quoting Sargent, 40 Wn. App. at 348 n.3).
“An error in admitting evidence that does not result in prejudice to the
defendant is not grounds for reversal.” State v. Bourgeois, 133 Wn.2d 389, 403,
945 P.2d 1120 (1997) (citing Brown v. Spokane County Fire Prot. Dist. No. 1,
100 Wn.2d 188, 196, 668 P.2d 571 (1983)). Such an error is “not prejudicial
unless, within reasonable probabilities, the outcome of the trial would have been
15 No. 81033-2-I/16
materially affected had the error not occurred.”5 State v. Tharp, 96 Wn.2d 591,
599, 637 P.2d 961 (1981).
“A parent has a right to use reasonable and timely punishment to
discipline a minor child within the bounds of moderation and for the best interest
of the child. . . . For this purpose, a parent may inflict reasonable corporal
punishment.” State v. Singleton, 41 Wn. App. 721, 723, 705 P.2d 825 (1985)
(citing State v. Thorpe, 429 A.2d 785, 788 (1981)). The trier of fact may consider
the following in determining the reasonableness of punishment: “the age, size,
sex, and physical condition of both child and parent, the nature of the child’s
misconduct, the kind of marks or wounds inflicted on the child’s body, the nature
of the instrument used for punishment, etc.” Singleton, 41 Wn. App. at 723-24
(citing Harbaugh v. Commonwealth, 209 Va. 695, 167 S.E.2d 329, 332 (1969)).
The force used to discipline a child must be “reasonable and moderate as
objectively determined by a jury.” Singleton, 41 Wn. App. at 724 (emphasis
added).
Here, Britt contends that the admission of a statement by Rogers that she
never wanted to hit B.C. was not relevant to determining whether Britt assaulted
or reasonably physically disciplined B.C. Britt further asserts that the admission
of this evidence was highly prejudicial because it set up the jury to compare
Rogers’ and Britt’s treatment of the children to undermine a reasonable discipline
defense. While Rogers’ desire, or lack thereof, to hit B.C. is plainly not relevant
5 “Because the error here resulted from violation of an evidentiary rule, not a
constitutional mandate, we do not apply the more stringent ‘harmless error beyond a reasonable doubt’ standard.” Bourgeois, 133 Wn.2d at 403 (citing State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)).
16 No. 81033-2-I/17
to determining whether Britt ever struck B.C. or whether the force Britt used to so
strike B.C. was objectively reasonable, it is equally plain that the admission of
this evidence did not prejudice Britt’s defense of reasonable discipline. Whether
Rogers’ believed physical force was desirable, let alone reasonable or
unreasonable, is irrelevant because the defense of reasonable discipline involves
the application of an objective standard. The jury instruction for Britt’s defense
properly informed the jury that it was required to “determine whether the force
used, when viewed objectively, was reasonable and moderate.” The jury is
presumed to have followed this instruction. See Spivey v. City of Bellevue, 187
Wn.2d 716, 389 P.3d 504 (2017). Because Britt does not contend that the jury
failed to follow its instructions, we conclude that the jury properly considered
Britt’s defense of reasonable parental discipline using the proper objective
standard.6 Thus, any error in admitting Rogers’ irrelevant testimony that she
never desired to hit B.C. was harmless.
V
Britt next contends that her counsel at trial provided constitutionally
ineffective assistance and that this merits reversal. This is so, Britt asserts,
because defense counsel did not object to the admission of multiple inadmissible
statements by B.C. at trial. In response, the State asserts that Britt cannot
establish ineffective assistance because defense counsel had sound strategic
6 Although not determinative, we further note that Britt does not contend that the State
argued that the jury’s determination should be influenced by Rogers’ statement that she never wanted to hit B.C. Indeed, it appears from the record that other than during Rogers’ testimony, the fact that she never wanted to hit B.C. was never mentioned by anyone during the trial.
17 No. 81033-2-I/18
reasons to permit the admission of B.C.’s statements and relied upon them to
support Britt’s defense theory. The State has the better argument.
“The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to effective
assistance of counsel.” State v. Anderson, 9 Wn. App. 2d 430, 454, 447 P.3d
176 (2019) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). A defendant seeking to establish ineffective assistance
must show that (1) counsel provided representation so deficient that it fell below
an objective standard of reasonableness and (2) the deficient performance
prejudiced her. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
“To prevail on an ineffective assistance claim, a defendant alleging
ineffective assistance must overcome ‘a strong presumption that counsel’s
performance was reasonable.’ Accordingly, the defendant bears the burden of
establishing deficient performance.” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011) (citation omitted) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215
P.3d 177 (2009); citing State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995)). “When counsel’s conduct can be characterized as legitimate trial
strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863. “The
relevant question is not whether counsel’s choices were strategic, but whether
they were reasonable.” See Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct.
1029, 145 L. Ed. 2d 985 (2000) (concluding that the failure to discuss the
possibility of an appeal with a client is usually unreasonable). To prevail on an
ineffective assistance claim, a defendant who successfully establishes deficient
18 No. 81033-2-I/19
performance must also establish that “there is a reasonable probability that, but
for counsel’s deficient performance, the outcome of the proceedings would have
been different.” Kyllo, 166 Wn.2d at 862.
Britt contends that her counsel provided ineffective assistance because he
did not protest the admission of several out of court statements made by B.C.
during forensic interviews that pertained to the communication with a minor for
immoral purposes charge. According to Britt, such statements were inadmissible
hearsay and were prejudicial. In response, the State concedes that defense
counsel could have objected to the admission of these out of court statements,
but asserts that it was a reasonable strategic choice to not object. This is so, the
State asserts, because (1) the defense relied on a theory that compared B.C.’s
out of court statements regarding the communication with a minor for immoral
purposes misdemeanor charges with his live testimony to attack B.C.’s credibility,
and (2) the jury had already heard Britt admit on one of her recorded jail calls that
she had shown a pornographic video to both J.B. and B.C. This, the State
further avers, was a reasonable strategic choice because it allowed the defense
to question B.C.’s credibility as to all the testimony he provided without suffering
any real harm to Britt because the recorded telephone call admission already
supported the communication with a minor for immoral purposes charges. The
record supports the State’s argument.
In closing argument, defense counsel repeatedly argued that the jury
should closely compare B.C.’s out of court statements from his forensic
interviews with his live testimony because his statements were inconsistent.
19 No. 81033-2-I/20
Plainly, the defense strategy involved persuading the jury that B.C.’s testimony
was not credible. Furthermore, such a strategy was eminently reasonable, as it
allowed the defense to argue that the jury could infer, having observed B.C.’s
inconsistent statements regarding the misdemeanor charges, that B.C.’s
testimony as to the more serious felony assault charges was also not credible.
Furthermore, the benefit of challenging B.C.’s credibility on these felony charges
significantly outweighed any risk to Britt from the admission of B.C.’s out of court
statements regarding the communication with a minor for immoral purposes
misdemeanor charges because those charges were already strongly supported
by the presentation of Britt’s recorded phone call admitting that she had shown
J.B. and B.C. a pornographic video. Britt has therefore failed to establish that her
counsel’s performance was deficient. Thus, her claim fails.
VI
Britt next contends that the prosecutor committed misconduct by seeking
to elicit testimony explaining that the jury would only be presented with excerpted
portions of all of Britt’s recorded jail telephone calls. This is so, Britt asserts,
because eliciting such testimony would enable the jury to speculate that the
defense was intentionally hiding evidence. In response, the State asserts that
there was no misconduct because (1) when Britt objected to the State’s attempt
to solicit such testimony the trial court sustained the objection, thus granting the
defense the relief it requested, and (2) defense counsel stipulated to informing
the jury that they would hear only excerpts of the recorded jail calls. The State
has the better argument.
20 No. 81033-2-I/21
The record establishes that Britt received the remedy she requested at
trial regarding the State’s allegedly improper attempt to elicit testimony that the
jury was being presented with excerpts of recorded jail telephone calls—the trial
court sustained Britt’s objection to the admission of such testimony. When a
party objects and receives the remedy it requests, it cannot complain that more
was required on appeal as “[t]he law presumes that th[is] remed[y] [was]
effective.” Giles, 196 Wn. App. at 769 (citing State v. Warren, 165 Wn.2d 17, 28,
195 P.3d 940 (2008)). Britt cannot now complain of an error for which she
received the remedy she requested at trial.
Furthermore, the record establishes that defense counsel stipulated to
informing the jury that they were hearing excerpts of all the recorded jail
telephone calls.7 It is plainly not prosecutorial misconduct to inform the jury of
information which defense counsel has stipulated may be presented to the jury.
Britt has therefore failed to establish that the prosecutor committed misconduct.
VII
Britt next contends that we must remand this matter to the trial court in
order to correct several deficiencies in the judgment and sentence relating to the
conditions of her sentence. In response, the State asserts that this contention is
moot because the trial court has already issued an amended judgment
containing all of the modifications requested herein by Britt.
7 Additionally, there was never any evidence presented to suggest, nor was any
argument ever made, that the jury was only permitted to hear excerpts of the recorded jail telephone calls because the defense blocked the admission of all of those calls. In fact, the record shows just the opposite: the State elicited testimony herein that the prosecutor’s office had requested that the excerpts of the calls be made.
21 No. 81033-2-I/22
An issue is moot “if a court can no longer provide effective relief.” Orwick
v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). Generally, we will
not review a moot question. Global Neighborhood v. Respect Wash., 7 Wn. App.
2d 354, 375, 434 P.3d 1024 (citing Citizens for Financially Responsible Gov’t v.
City of Spokane, 99 Wn.2d 339, 350, 662 P.2d 845 (1983)), review denied, 193
Wn.2d 1019; cert. denied, 140 S. Ct. 638, 205 L. Ed. 2d 389 (2019).
Britt does not dispute that the trial court entered an amended judgment
correcting the errors she asserts require reversal, but nevertheless asserts that
we must still reverse because the Department of Corrections will disregard the
amended judgment. Because this entirely speculative assertion—about an entity
that is not even a party to this case—is unsupported by the record, we agree with
the State that Britt’s contentions regarding the conditions of her sentence set
forth in the original judgment order are moot and decline to consider them.8
VIII
Finally, Britt contends that we must also remand this matter to the trial
court to strike a $100 DNA collection fee and a $200 criminal filing fee imposed
as part of Britt’s sentence. The State concedes that the $200 criminal filing fee
8 Britt also contends that remand is required because the trial court issued the amended
judgment after Britt filed her appeal but without first obtaining permission from this court pursuant to RAP 7.2. RAP 7.2(e)(2) states that if an order entered by the trial court “will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision. A party should seek the required permission by motion.” The State concedes that this court never granted permission to the trial court to enter an amended judgment, but asserts that we should treat the amended judgment as if such permission had been granted for the sake of judicial economy. Because it would be an unnecessary waste of judicial resources to disregard the amended judgment—which both parties agree corrects the challenged deficiencies of the original judgment—and remand this case for entry of an identical order, we treat the amended judgment herein as if it had been entered in compliance with RAP 7.2.
22 No. 81033-2-I/23
must be stricken, and we agree. However, the State asserts that the trial court
properly imposed the $100 DNA collection fee. We disagree.
“RCW 43.43.7541 requires the collection of a DNA sample from every
adult or juvenile convicted of a felony.” State v. Houck, 9 Wn. App. 2d 636, 651,
446 P.3d 646 (2019), review denied, 194 Wn.2d 1024 (2020). “A DNA collection
fee is mandatory ‘unless the state has previously collected the offender’s DNA as
a result of a prior conviction.’” Houck, 9 Wn. App. 2d at 651 (quoting RCW
43.43.7541). If a defendant has a prior felony conviction, “the State must show
that the defendant’s DNA has not previously been collected.” Houck, 9 Wn. App.
at 651 n.4. If the record does not establish whether the State has previously
collected a DNA sample from a defendant with a prior felony conviction but the
DNA collection fee was imposed, the proper remedy is remand to determine
whether such collection has occurred and for the trial court to strike the
imposition of the collection fee if the State cannot demonstrate that the
defendant’s DNA has not previously been collected. See Houck, 9 Wn. App. 2d
at 651 (“The trial court, on remand, shall strike the DNA collection fee unless the
State demonstrates that Houck’s DNA has not been collected.”).
Britt has a prior felony conviction. The record does not show that the
State established that it had not previously collected Britt’s DNA. Thus, we
remand to the trial court to determine whether the State has previously collected
a DNA sample from Britt, to strike the DNA collection fee unless the State
demonstrates that Britt’s DNA was not previously collected, and to strike the
$200 criminal filing fee.
23 No. 81033-2-I/24
Affirmed in part, reversed in part, and remanded.
WE CONCUR: