IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81106-1-I
Respondent, DIVISION ONE v.
TAMEE MARIE PURDY, UNPUBLISHED OPINION
Appellant.
CHUN, J. — A jury found Tamee Marie Purdy guilty of assault in the third
degree. Purdy appeals, contending the trial court erred by (1) admitting certain
pre- and post-arrest evidence, (2) excluding certain post-arrest video evidence,
and (3) inadvertently imposing discretionary legal financial obligations (LFOs).
For the reasons discussed below, we remand for the trial court to strike the
supervision fees and affirm in all other respects.
I. BACKGROUND
A. Facts
On New Year’s Eve 2017, at the Madison Street Pub (Pub) in Everett,
bouncer Tony Stiffarm confronted a female patron who bartenders refused to
serve. Law enforcement later purported to identify the patron as Purdy.
According to Stiffarm, he told the patron that “she cannot yell at my customers.
You will not be served. You can stay and watch karaoke if you want, but you
cannot have a drink.” The patron became “irate” and uncooperative, but
eventually left. “Then shortly later, she came back.” Stiffarm testified, “I had to
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confront her with my hands in my pockets, excuse me, Ma’am, you’re not
welcome here again. I need you to leave my building.” She eventually left.
Meanwhile, someone called 911 to report a disturbance at the Pub. “[A]
little bit before midnight,” Everett Police Officers Ryan Greely and Stephen
Klocker responded. According to Greely, Stiffarm said that the patron who
caused the disturbance was a “[s]lender female, [with] long hair, [a] white jacket,
[and] brown boots.”1 Stiffarm described what happened and said the patron had
left. He said he saw her go north on Fleming Street. The officers ceased
investigating and left the Pub.
“Three to four minutes” after Officer Klocker left the Pub, he drove on “the
6700 block of Fleming” Street and observed Purdy “[s]taggering out in the middle
of the street.” Klocker testified that Purdy “matched the description of the party
who -- we received at the pub.” Although at trial, he could not recall what that
description was. Klocker testified that as he drove by, “she saw me, she got
rather animated and started flipping me off and cursing at me.” But he “ignored
her and continued driving.”
Dawn Lashbrook was walking home from a neighbor’s party on a
residential portion of Fleming Street that did not have sidewalks. Lashbrook
testified to the following: Purdy “was really loud walking on Fleming.” She said, [L]iving on Fleming is very interesting anyway, because you get a lot of interesting characters. So usually people just mind their own business. And you’re used to that when you live there. But she was like overly -- and it made me, you know, kind of nervous. And I think
1 At trial, Stiffarm testified only that the patron was “a taller, white female.”
2 No. 81106-1-I/3
that’s why I called the police just because I was nervous. I live alone so . . .
“[W]e were yelling back and forth just because I was wanting her to just move
along, and she wasn’t going down the street.”
Officer Greely learned about Lashbrook’s call about “nine minutes after
midnight” and responded to it. He testified to the following: He went to the 6400
block of Fleming Street, which was “a couple of blocks north of the” Pub. He
found Purdy “walking in the middle” of the street and she was yelling at
“neighbors out on their [respective] porch[es].” Purdy and the neighbors
threatened “to beat each other’s asses.” Greely got out of his patrol vehicle,
walked toward Purdy, identified himself, and asked Purdy to stop. Purdy
responded, “[G]et the fuck away.” She kept walking and yelling at the neighbors.
Greely was concerned there would be a fight and felt “[t]here really wasn’t a
chance” to deescalate the situation with further verbal commands. To prevent a
fight, Greely grabbed Purdy’s arm. Purdy responded by punching Greely’s
shoulder and causing him “temporary pain, soreness.” Greely then “took her
down to the ground” and handcuffed her. While on the ground, Purdy called
Greely “a bitch.” Greely then called other officers and a supervisor for help.
Lashbrook testified that Purdy was not cooperating with the officers. She
remembered Purdy “pushing him or something.”
Lashbrook’s neighbor Steve Danielson testified to the following: He was
celebrating New Year’s Eve at his neighbor’s house. “[A]t midnight or shortly
after,” he saw a law enforcement vehicle’s flashing lights, and went outside to
“see what was going on.” From across Fleming Street, he saw Purdy on the
3 No. 81106-1-I/4
ground. When an officer tried to get her off the ground, “she wasn’t too
cooperative.” Purdy “was pretty belligerent” and “acting pretty out of control.”
Once she was standing, she “[g]rabbed him, was throwing punches, [and]
cussing” at the officer. Then, the officer “took her to the ground.”
Purdy’s friend Jason Heil testified to the following: He had been at the Pub
with Purdy earlier that evening. The Pub was “extremely rowdy” so he left for
another bar nearby and Purdy stayed. Heil did not see Purdy interact with
Stiffarm. Just after midnight, Heil left the other bar and was on Fleming Street in
a taxi when he recognized Purdy because she was wearing the same white
jacket that she had been wearing at the Pub. He saw Purdy and an officer
yelling at each other and, within a “split second,” the officer “got her with the arm,
and then he tucked her in, and she went down.” Heil did not see Purdy “hit the
officer.” Next, he saw the officer get Purdy up, and “put the handcuffs on.” He
said the officer “was celebrating” and his face expressed “joy, like I just got -- got
her.”
Officer Klocker testified that he responded to Greely’s call “just a few
minutes” after he saw Purdy in the street. He also testified that Greely and Purdy
were in the “6400 block, which would be about two or three blocks north of where
I’d initially seen her.” Officer Nathan Wallace also responded to Greely’s call.
Wallace and Klocker testified that, when they arrived, Purdy was “[d]runk,
belligerent, obnoxious,” “threatening,” and “yelling” at Greely. Purdy told Klocker
that Greely was “a pussy and . . . needed to grow a dick.”
4 No. 81106-1-I/5
Klocker then took photographs of Purdy’s injuries—abrasions on her chin
and hand—and of Greely. Each time Klocker took a photograph, he
inadvertently took a short video. In the video, an officer says, “You should’ve just
let those people beat her ass,” and another officer responds by chuckling.
Klocker then placed Purdy in the back of his patrol vehicle. Klocker testified that
while in the patrol vehicle, Purdy “continu[ed] to berate, insult, and threaten us.”
According to Klocker, Purdy said “she could rip our throats out.”
B. Procedural History
The State charged Purdy with third degree assault of Greely.
Before trial, the court considered the parties’ motions in limine. The State
moved to admit Stiffarm’s testimony that the female patron was intoxicated, he
asked her to leave the Pub, and “she immediately became combative, slapping,
kicking, and spitting on him.” The State asserted that Stiffarm’s testimony was
res gestae and probative evidence to rebut Purdy’s defense that Greely
assaulted her because it showed that “Purdy is assaultive moments before, the
same night with another authority figure, a bouncer at a pub.” Purdy did not
dispute being at the Pub. She argued that Stiffarm’s testimony would be more
prejudicial than probative and the jury could mistake it as propensity evidence—
“that because she assaulted the bouncer, she must have assaulted the police
officer later that evening.” The trial court determined Stiffarm’s testimony
concerned “what was going on with her shortly before this offense” and “the
State’s recitation of what they believe Mr. Stiffarm will testify to is that she also
was combative and refused to follow his direction when given, which I think are --
5 No. 81106-1-I/6
are different in that I’m not sure that is 404(b), I mean, that is not an uncharged
crime.” The trial court said, “I do not see the prejudicial nature of any testimony
as to what Ms. Purdy’s demeanor was.”
Purdy also objected, “[I]t’s not clear to me that [Stiffarm] identifies
Ms. Purdy at all during the evening.” The trial court stated, “It seems like there’s
a question right now as to whether or not Mr. Stiffarm will identify Ms. Purdy or
has identified Ms. Purdy as the person that was in the Madison Pub. Assuming
that he can, we will hear his testimony as to what occurred.”
The State asked the trial court to admit Purdy’s post-arrest statements to
the officers. The State at first argued the statements were admissible under
ER 404(b). The State then changed course and asked the trial court to admit the
evidence as relevant to Purdy’s state of mind under ER 401 and 403. Purdy
responded that the statements were inadmissible as more prejudicial than
probative under ER 403. The court admitted the statements as “relevant as to
her state of mind.”
Before opening statements, the defense advanced the theory that Greely
tackled Purdy “because she flipped him off and swore at him, and then [he] made
up a false story that [she] assaulted him to justify his excessive use of force after
he saw she was injured.” To support this theory, Purdy moved to admit the video
taken by Klocker. After watching the video, the trial court denied Purdy’s
request, explaining that it was unclear who was speaking in the video, but
recognizing that “[i]t may be that based on testimony that comes out, this
6 No. 81106-1-I/7
becomes relevant.” The trial court also stated, “I’m really struggling to see how –
how the video is relevant.”
During trial, Purdy again moved for the trial court to exclude testimony of
her post-arrest statements to the officers arguing it was more prejudicial than
probative. The trial court stated I think that her statements beyond simply flipping [the officers] off and saying, Fuck you and then being tackled, the statements that she could rip out their throats and that the assaulting officer was a pussy and needed to grow a dick go directly towards her frame of mind in terms of her interactions with the officer. So, again, without something new or more, I don’t have any information that would cause the Court to reconsider its earlier decision to admit the statements that were admitted at the 3.5 hearing.
During Klocker’s cross-examination, Purdy also again asked the court to
admit the video. Klocker testified that Wallace said to Greely, “You should’ve just
let those people beat her ass,” and Greely responded by chuckling. Purdy
argued the video was admissible as evidence of Greely’s state of mind and bias
toward her, and admissible to impeach Greely’s testimony that she was
belligerent. The State argued that because Purdy’s, rather than Greely’s, state of
mind was at issue, the video was irrelevant. The trial court disagreed “that
Officer Greely’s state of mind is not at issue given [Purdy’s] theory is that he lied
in order to avoid making a use of force report after observing Ms. Purdy’s
injuries. However, I now can find no tangible connection between Sergeant
Wallace’s statement after the fact.” The trial court determined, Whether or not he thought someone else’s statement later was funny I think has limited value as to what he was thinking at the time that he had an altercation with Ms. Purdy, because this all happens after the fact. ....
7 No. 81106-1-I/8
So I don’t see how his chuckling at a comment after the fact can at all be interpreted to determine what he -- whether or not he tackled Ms. Purdy and then lied about it.
The trial court excluded the video.
Before Stiffarm testified, Purdy again asked the trial court to exclude his
testimony: “My issue [is] with Mr. Stiffarm testifying about the fact that he
encountered a female . . . [and] he doesn’t recall what this woman looks like. He
didn’t go and do any sort of like identification process to identify that it was
Ms. Purdy.” She also asserted, “My concern is that he can’t identify who this is
and so that would be not relevant. It would be prejudicial if it were let in. I just --
I just don’t see that the State can show by a preponderance that it’s -- that it’s
Ms. Purdy at all.” The State argued that while there was “no direct
identification[,] . . . there is sufficient circumstantial evidence to establish
identification by a preponderance of the evidence.”
The trial court allowed Stiffarm to testify to a certain extent. It reasoned
that the information that the police responded to the Madison Pub and the information they received was partly to identify the same description of the person and partly to explain what Officer Greely knew and understood the situation to be when -- when he came upon her. Also, I’ll allow Mr. Stiffarm’s testimony that is consistent with that. I would agree that other statements, given the -- I think this establishes the identity of Ms. Purdy by a preponderance of the evidence given what Officer Greely reported. However, I would agree that the exact statements as to cuss words that she used, that she hit, kicked or was physical with him would be unduly prejudicial given his inability to identify Ms. Purdy today as that person and that he was simply -- related on the night of the general description of a female and what she was wearing.
8 No. 81106-1-I/9
Stiffarm testified that the irate patron was a tall, white female. He said the patron
was uncooperative. He said, “[S]he was not cooperative one bit . . . . [W]hen she
came back the second time and I asked her to leave, she started being physical.”
Purdy objected and the trial court sustained the objection, stating, “The jury’s
instructed to disregard the last statement.”
The jury convicted Purdy as charged. The trial court granted Purdy a first
time offender waiver” and sentenced her to 240 hours of community restitution
and 12 months of community custody under the supervision of the Department of
Corrections (DOC). During the sentencing hearing, the trial court said, “I will find
that Ms. Purdy is indigent for the purposes of legal financial obligations, impose
only the $500 victim penalty assessment and the $100 DNA fee.”
Purdy appeals.
II. ANALYSIS
A. Evidence of Purdy’s Acts
Purdy says the trial court violated ER 404(b) by admitting Stiffarm’s
testimony. She also says the trial court erred by admitting her post-arrest
statements to the officers. The State responds that the evidence was admissible
as res gestae and relevant under ER 402.
We review a trial court’s evidentiary rulings for abuse of discretion. State
v. Dillon, 12 Wn. App. 2d 133, 146, 456 P.3d 1199, review denied, 195 Wn.2d
1022, 464 P.3d 198 (2020). “A trial court abuses its discretion if its decision is
based on untenable grounds, an erroneous view of the law, or is manifestly
9 No. 81106-1-I/10
unreasonable. If evidence was improperly admitted, the court analyzes whether
the improper admission was harmless.” Id. (citations omitted).
Generally, all relevant evidence is admissible. ER 402. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” ER 401. The trial court may exclude
relevant evidence “if its probative value is substantially outweighed by the danger
of unfair prejudice.” ER 403.
Under ER 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
But “ER 404(b) does not restrict evidence of acts that are closely associated with
the crime charged.” State v. Sullivan, 18 Wn. App. 225, 235, 491 P.3d 176
(2021). Res gestae or same-transaction evidence is “‘admissible to complete the
story of a crime or to provide the immediate context for events close in both time
and place to the charged crime.’” Dillon, 12 Wn. App. 2d at 148 (quoting State v.
Lillard, 122 Wn. App. 422, 432, 93 P.3d 969 (2004)). “[R]es gestae evidence
‘more appropriately falls within ER 401’s definition of ‘relevant’ evidence, which is
generally admissible under ER 402’ rather than an exception to propensity
evidence under ER 404(b).” Id. (quoting State v. Grier, 168 Wn. App. 635, 646–
47, 278 P.3d 225 (2012)).
10 No. 81106-1-I/11
The trial court instructed the jury that an element of assault “is an
intentional touching or striking of another person that is harmful or offensive
regardless of whether any physical injury is done to the person.” To prove Purdy
assaulted Greely, the State had to prove she intentionally hit or punched Greely.
1. Stiffarm’s Testimony
Purdy contends the trial court abused its discretion in admitting Stiffarm’s
testimony about the female patron who was belligerent, uncooperative, and
physical2 and not conducting an ER 404(b) analysis. She says ER 404(b) bars
Stiffarm’s testimony because the jury could view it “as showing her propensity to
be assaultive and uncooperative and therefore she was the type of person who
would assault a police officer.” The State responds that Stiffarm’s testimony was
admissible as res gestae.3 We agree with the State.
In Sullivan, the State charged the defendant with robbery in the first
degree with a deadly weapon and unlawful possession of a firearm. 18 Wn. App
at 232. To prove a material element of the crimes, the trial court admitted
evidence that the defendant had been involved in a shooting 25 minutes before
the robbery. Id. at 237. The trial court also admitted the evidence as res gestae
because the events occurred close in time. Id. On appeal, we determined the
2 Purdy contends that although the trial court sustained her objection to Stiffarm’s testimony that she was “physical” with him, and despite the court’s instruction, “jurors would be unlikely to erase this information from their minds given the tenor of the testimony and the prosecution’s reliance on it in closing argument.” Without evidence otherwise, we presume juries follow instructions. State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013). We thus do not address the stricken testimony. 3 The State also contends Stiffarm’s testimony is relevant to show what Greely knew when he responded to Lashbrook’s call and to rebut Purdy’s defense that Greely assaulted her. Because the evidence was admissible as res gestae and as relevant evidence of Purdy’s state of mind before the assault, we do not reach this contention.
11 No. 81106-1-I/12
trial court acted within its discretion. Id. at 239. The evidence from the shooting
was material to elements of both robbery in the first degree with a deadly weapon
and unlawful possession of a firearm and necessary to provide context for the
robbery. Id. We determined that the evidence was not evidence of other
misconduct requiring the application of ER 404(b). Id. at 240.
While the trial court here did not use the term “res gestae” or “same
transaction,” in response to the State’s res gestae argument, it essentially
conducted a res gestae analysis. The trial court found Stiffarm’s testimony
relevant to “what was going on with her shortly before this offense,” including her
state of mind and demeanor. The trial court determined that Purdy’s assault of
Greely occurred shortly after and in the same area as her interaction with
Stiffarm at the Pub. During trial, the court also viewed Stiffarm’s testimony as
relevant “to explain what Officer Greely knew and understood the situation to be
when -- when he came upon her.”
The trial court did not abuse its discretion4 because Stiffarm and Purdy’s
interaction occurred a few minutes before and a few blocks away from the
assault on Officer Greely, and was relevant to show her state of mind just before
the assault and therefore to show the intent element of the crime. As in Sullivan,
4 Even if the trial court erred in admitting Stiffarm’s testimony about Purdy’s conduct, the error would have been harmless because of the extensive other evidence that Purdy engaged in similar behavior that evening. See State v. Ashley, 186 Wn.2d 32, 47, 375 P.3d 673 (2016) (“Erroneous admission of evidence in violation of ER 404(b) is harmless unless there is a reasonable probability that the verdict would have been materially different but for the error.”).
12 No. 81106-1-I/13
Stiffarm’s testimony was part of the immediate context of the assault, so it was
admissible as res gestae and ER 404(b) did not apply.5
2. Purdy’s Post-Arrest Statements to the Officers
Purdy contends the trial court erred by admitting evidence of her post-
arrest statements to the officers. The State contends the evidence was
admissible as res gestae and as evidence of Purdy’s state of mind. We conclude
that Purdy’s post-arrest statements were relevant to her state of mind.
The trial court admitted the testimony because it found “the statements
that she could rip out their throats and that the assaulting officer was a pussy and
needed to grow a dick go directly towards her frame of mind in terms of her
interactions with the officer.” In Dillon, we determined a defendant’s post-arrest
threats to the arresting officer were admissible to show the defendant’s state of
mind and hostility toward the officer at the time of the crimes and was not subject
to ER 404(b). 12 Wn. App. 2d at 150. Likewise, here, Purdy’s statements were
relevant to show Purdy’s intent and were not subject to ER 404(b). The trial
court did not abuse its discretion in admitting this evidence.6
5 Purdy contends the trial court “deemed ER 404(b) inapplicable and admitted the evidence without limitation.” The State responds that because Purdy did not request a limiting instruction, the court did not have to give one about her pre- and post-arrest behavior. We agree with the State. See State v. Russell, 171 Wn.2d 118, 123, 249 P.3d 604 (2011) (“[A]bsent a request for a limiting instruction, the trial court is not required to give one sua sponte.”); State v. Gresham, 173 Wn.2d 405, 424, 269 P.3d 207 (2012) (“[I]n the context of ER 404(b) limiting instructions, once a criminal defendant requests a limiting instruction, the trial court has a duty to correctly instruct the jury, notwithstanding defense counsel’s failure to propose a correct instruction.”). In any event, because we conclude that Stiffarm’s evidence was res gestae, a limiting instruction about Purdy’s behavior was unnecessary. 6 Given this conclusion, we do not reach the res gestae issue about the post-
arrest statements.
13 No. 81106-1-I/14
B. Post-Arrest Video
Purdy says the trial court violated her Sixth Amendment to the United
States Constitution and article I, section 22 of the Washington Constitution right
to present a defense by excluding the post-arrest video. She contends the video
was admissible to undercut the State’s claim that she was irate and hostile and to
impeach Greely’s testimony that she injured him, causing “temporary pain [and]
soreness.” (Alteration in original.) The State counters that the video tracks its
claim that Purdy was belligerent and was irrelevant because Greely’s chuckle
was not probative of his state of mind or injury. The State also says, if the video
has any probative value, its potential for prejudice outweighed that value. We
conclude the trial court did not deprive Purdy of her right to present a defense.
The state and federal constitutions guarantee a defendant the right to
present a defense. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v.
Hudlow, 99 Wn.2d 1, 14–15, 659 P.2d 514 (1983). But that right is not absolute.
State v. Bedada, 13 Wn. App. 2d 185, 193, 463 P.3d 125 (2020). For example, a
defendant has “no constitutional right to present irrelevant evidence.” State v.
Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (emphasis omitted).
For claims of a violation of the right to present a defense, we apply a two-
step process: (1) we “review the trial court’s individual evidentiary rulings for an
abuse of discretion,” and (2) we “consider de novo the constitutional question of
whether these rulings deprived [Purdy] of her Sixth Amendment right to present a
defense.” State v. Arndt, 194 Wn.2d 784, 797–98, 453 P.3d 696 (2019).
14 No. 81106-1-I/15
First, we consider whether the trial court abused its discretion in excluding
the video. As discussed above, only relevant evidence is admissible. ER 402.
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.” ER 401. “The
proponent of the evidence bears the burden of establishing its relevance and
materiality.” Bedada, 13 Wn. App. 2d at 193.
Purdy says the video shows her calm demeanor, which contradicts the
State’s contention that she was irate and hostile after her arrest. She contends
the video was thus relevant to whether she intentionally assaulted and injured
Greely. The State responds that “the video shows her cursing, which is
consistent with a belligerent attitude.” The video is 38 seconds long, it is dark,
and visibility is limited. It captures only brief glimpses of Purdy’s demeanor after
the assault. And it depicts her swearing. The brief glimpses of Purdy’s
demeanor are not necessarily inconsistent with her being irate and hostile during
the period after her arrest. As a result, we cannot say that the trial court abused
its discretion on this ground.
Purdy also contends the video of Greely allegedly chuckling after
Wallace’s statement, “You should’ve just let those people beat her ass,”
contradicts Greely’s claim that her assault caused him temporary pain and
soreness. While the trial court agreed the video might be probative of Greely’s
state of mind, it concluded that it is not probative as to Purdy’s defense nor of
whether Purdy caused Greely temporary injury. The chuckle in response to
15 No. 81106-1-I/16
Wallace’s statement is not necessarily inconsistent with Greely’s temporary pain.
Again, we cannot say that the trial court abused its discretion.7
Second, we consider whether the trial court’s ruling to exclude the video
violated Purdy’s right to present a defense and her right to a fair trial. We
determine it did not.
“[A] defendant’s Sixth Amendment rights are not absolute.” State v. Case,
13 Wn. App. 2d 657, 669, 466 P.3d 799 (2020). “To show a Sixth Amendment
violation, the excluded evidence must be of extremely high probative value.” Id.
at 670. “[I]t is not enough that the excluded evidence simply be relevant in that it
makes a fact of consequence more or less probable.” Id.
Purdy asserts that the video impeaches Greely’s credibility as the State’s
central witness. Her defense theory is essentially that Greely “made up a false
story that she assaulted him to justify the fact that she was injured.” The trial
court excluded the video in part because it found that Greely’s chuckle had
limited probative value as to Greely’s state of mind when he took Purdy to the
ground. It also found that the video did not support Purdy’s theory that Greely
lied about the incident “to avoid making a use of force report.” The trial court
determined the video had little probative value and did not make any fact more or
less probable. The exclusion of the video did not prevent Purdy from arguing her
trial theory. Based on the record before us, we cannot say that the video was of
“extremely high probative value.”
7 Given our conclusion, we do not reach the State’s contention that the video would have been prejudicial against it.
16 No. 81106-1-I/17
C. Right to a Fair Trial
Purdy contends the trial court’s admission of Stiffarm’s testimony,
admission of her post-arrest statements to the officers, and exclusion of the video
was unduly prejudicial and denied her the right to a fair trial. A trial court’s
erroneous admission of evidence is subject to the harmless error analysis. State
v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). An error is harmless
“‘unless, within reasonable probabilities, had the error not occurred, the outcome
of the trial would have been materially affected.’” State v. Gresham, 173 Wn.2d
405, 425, 269 P.3d 207 (2012) (quoting State v. Smith, 106 Wn.2d 772, 780, 725
P.2d 951 (1986)). Because we do not see any evidentiary errors, we cannot
conclude that the trial court denied Purdy her right to a fair trial.
D. Supervision Fees
Purdy says the trial court intended to waive all discretionary LFOs but
inadvertently imposed supervision fees. We agree and remand for the trial court
to strike the fees.
Because trial courts can waive supervision fees, they are discretionary
LFOs. Dillon, 12 Wn. App. 2d at 152; RCW 9.94A.703(2). “Where the record
demonstrates that the trial court intended to impose only mandatory LFOs but
inadvertently imposed supervision fees, it is appropriate for us to strike the
condition of community custody requiring these fees.” State v. Peña Salvador,
17 Wn. App. 2d 768, 791–92, 487 P.3d 923 (2021) (citing Dillon, 12 Wn. App. 2d
at 152); see also State v. Markovich, No. 81423-1-I, slip op. at 18 (Wash. Ct.
17 No. 81106-1-I/18
App. Aug. 2, 2021), https://www.courts.wa.gov/opinions/pdf/801562.pdf (holding
similarly).
During sentencing, the court said, “I will find that Ms. Purdy is indigent for
the purposes of legal financial obligations, impose only the $500 victim penalty
assessment and the $100 DNA fee.” (Emphasis added.) The trial court then
used a form judgment and sentence with an appendix providing, “While on
community custody, the defendant shall . . . pay supervision fees as determined
by DOC.”
In Dillon, we struck supervision fees because the record established that
“the trial court intended to impose only mandatory LFOs.” 12 Wn. App. 2d at
152; RCW 9.94A.703(2); see also Peña Salvador, 17 Wn. App. 2d at 792. At
sentencing, the trial court said it would “‘simply order $500 victim penalty
assessment, which is still truly mandatory, as well as restitution, if any.’” Dillon,
12 Wn. App. 2d at 152. We concluded that this, along with the location of the
prewritten language imposing supervision fees—in a separate section on
community custody conditions—supported a remand for the supervision fees to
be stricken. Id. Similarly, here, as for “legal financial obligations,” the trial court
stated its intent to “impose only the $500 victim penalty assessment and the
$100 DNA fee.” (Emphasis added.) The judgment and sentence’s LFO section
does not include an option for imposing supervision fees. As in Dillon, it appears
the trial court inadvertently imposed the supervision fees by using a form
judgment and sentence with prewritten language in the community custody
conditions appendix.
18 No. 81106-1-I/19
The State asks us to disregard Dillon and instead follow Division Two’s
decision in State v. Starr, 16 Wn. App. 2d 106, 108, 479 P.3d 1209 (2021)
(Worswck, J., concurring in part and dissenting in part). In Starr, the sentencing
court stated, “The defendant is otherwise indigent. So no other costs will be
assessed.” Id. But the sentencing court did not strike the part of the boilerplate
judgment and sentence imposing supervision fees. Id. On appeal, a majority of
the panel observed that supervision fees do not constitute costs, and thus the
sentencing court’s statements did not necessarily show that it did not intend to
impose such fees. Id. at 109. The dissenting judge agreed that such fees are
not statutory costs, but believed that the sentencing court stated an intent not to
impose the fees. Id. at 111. Starr does not apply here because the trial court
stated its intent to waive all nonmandatory LFOs.
The State seems to argue that the written judgment and sentence controls
over the trial court’s oral statement. We rejected this argument in State v.
Spieker, No. 80224-9-I, slip op. at 6 (Wash. Ct. App. Mar. 22, 2021)
(unpublished), https://www.courts.wa.gov/opinions/pdf/802259.pdf, noting that
the imposition of supervision fees through prewritten language is “more akin to a
scrivener’s error or clerical mistake than a contradictory statement.”8 The
remedy for a “scrivener’s error is remand to the trial court for correction of the
8 See GR 14.1(c) (“Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.”).
19 No. 81106-1-I/20
judgment and sentence.”9 Id. (citing In re Pers. Restraint of Mayer, 128 Wn. App.
694, 701–02, 117 P.3d 353 (2005)).
We remand for the trial court to strike the supervision fees and otherwise
affirm.
WE CONCUR:
9 In the alternative, the State contends that if the judgment and sentence does not express the intent of the sentencing court, Purdy should have moved for relief under CrR 7.8(a). But the State does not explain how this affects the appeal here.