State Of Washington, Resp/cross-app v. Danzel L. Phipps, App/cross-resp ( 2018 )

COURT
STATE OFAPPEA,SDIV I
WASHINGTON
2018 APR 23
All 0:3,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 75763-6-1
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
DANZEL L. PHIPPS, )
) FILED: April 23, 2018
Appellant. )
)
VERELLEN, J. — Danzel Phipps appeals his conviction for bail jumping.
Phipps contends there was insufficient evidence that he was released by a court
order. The State presented evidence the court warned Phipps that failure to
comply with an order resetting an omnibus hearing "may result in revocation of bail
and/or personal recognizance previously ordered in this cause."' Because a jury
could reasonably infer from this warning that Phipps had been released from
custody by a court order, there was sufficient evidence to support Phipps' bail
jumping conviction.
Phipps also argues the trial court violated his confrontation right by
admitting a minute entry and an order directing the issuance of a bench warrant.
Because both documents were nontestimonial and certified court records falling
1 Ex. 4.
No. 75763-6-1/2
within the public records exception to the hearsay rule, the trial court properly
admitted these documents.
Phipps challenges the constitutionality of the mandatory victim penalty
assessment(VPA)and DNA collection fee as applied to him. Because Phipps
does not assert any new arguments, we follow existing case law and conclude
imposition of these mandatory fees did not violate Phipps' due process right.
On cross appeal, the State argues the court abused its discretion in failing
to impose a $200 criminal filing fee. The criminal filing fee is mandatory under
RCW 26.18.020(2)(h). Therefore, we remand for imposition of a $200 criminal
filing fee.
FACTS
On August 12, 2015, the State charged Phipps with indecent liberties. On
August 26, 2015, the court arraigned Phipps and released him on bail. The court
set an omnibus hearing for September 17, 2015. On September 17, 2015, Phipps
appeared in court, and the court reset the omnibus hearing for October 1, 2015.
On October 1,2015, Phipps appeared in court, and the court reset the omnibus
hearing for October 15, 2015.
On October 15, 2015, Phipps failed to appear. The court issued a bench
warrant. The State filed an amended information adding a count of bail jumping
and second degree rape.
At trial, the court admitted the original information, the minute entry showing
Phipps' out-of-custody appearance on October 1st, the October 1st order resetting
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the hearing dates, the minute entry showing Phipps failure to appear on October
15th, and the order directing the issuance of a bench warrant. The jury found
Phipps guilty of bail jumping and not guilty of the other counts.
At sentencing, the court imposed a $500 VPA and a $100 DNA collection
fee. The court refused to impose a $200 criminal filing fee.
Phipps appeals and the State cross appeals.
ANALYSIS
I. Sufficiency of the Evidence
Phipps contends there was insufficient evidence to sustain his conviction for
bail jumping.
"The sufficiency of the evidence is a question of constitutional law that we
review de novo.'"2 To determine whether there is sufficient evidence to sustain a
conviction, we review the evidence in the light most favorable to the State and ask
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.3 "A claim of insufficiency admits the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."4
To convict a defendant of bail jumping, the State must prove beyond a
reasonable doubt that the defendant "(1) was held for, charged with, or convicted
of a particular crime;(2) was released by court order or admitted to bail with the
2 State v. Hummel, 196 Wash. App. 329, 352, 383 P.3d 592(2016)(quoting
State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746 (2016)).
3 State v. Elmi, 166 Wash. 2d 209, 214, 207 P.3d 439 (2009).
4 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
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No. 75763-6-1/4
requirement of a subsequent personal appearance; and (3) knowingly failed to
appear as required."5
Phipps claims the State failed to present evidence that he had been
"released by a court order." At trial, the court admitted the October 1st order
resetting the omnibus hearing. The order stated, "Failure to comply with this order
may result in the revocation of bail and/or personal recognizance previously
ordered in this cause."6
Viewed in the light most favorable to the State, a jury could reasonably infer
from the statement in the October 1st order that Phipps had been released from
custody by court order, either by posting bail or on his personal recognizance.
Thus, we conclude that the State presented sufficient evidence to support Phipps'
bail jumping conviction.
II. Right to Confrontation
Phipps argues the trial court violated his confrontation right by admitting as
evidence (1) exhibit 5A, the October 15th minute entry, and (2) exhibit 6, the
October 15th order directing the issuance of a bench warrant.
"We review alleged confrontation clause violations de novo."7 The Sixth
Amendment guarantees a criminal defendant's right to "be confronted with the
5 State v. Malvern, 110 Wash. App. 811, 813-14,43 P.3d 533(2002).
6 Ex. 4.
7 Statev. Hubbard, 169 Wash. App. 182, 185, 279 P.3d 521 (2012)(quoting
State v. Medina, 112 Wash. App. 40, 48,48 P.3d 1005 (2002)).
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No. 75763-6-1/5
witnesses against him.'"8 The confrontation clause prohibits the admission of
testimonial hearsay statements in a criminal case without an opportunity for cross-
examination.° "Generally, a statement is testimonial if made to establish or prove
some fact or if a reasonable person in the declarant's position would anticipate
that his or her statement would be used against the accused in investigating or
prosecuting a crime."10
Phipps claims the minute entry and order are testimonial and therefore he
must be allowed to confront the authors before their admission. Clerk M. Stewart
created the minute entry and Judge Linda Krese authored the order. The State
offered the testimony of Heidi Percy, a judicial operations manager, to authenticate
these documents. Percy testified that she did not prepare either document or
have personal knowledge as to the information contained in either document.
Here, the October 15th minute entry was not created for the purpose of
proving some fact in anticipation of criminal prosecution. Rather, the purpose of
the clerk's minute entry is to create "an independent record of what is occurring in
court."11 Similarly, in State v. Hubbard, Division Two of this court determined that
a minute entry was not testimonial because it was prepared for the purpose of
memorializing a court action of serving a defendant with a no-contact order.12 And
8 U.S. CONST. amend. VI.
9 Hubbard, 169 Wash. App. at 185.
19 State v. Hart, 195 Wash. App. 449, 459, 381 P.3d 142(2016).
11 Report of Proceedings(RP)(July 12, 2016) at 167.
12 169 Wash. App. 182, 185-87, 279 P.3d 521 (2012)
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No. 75763-6-1/6
the October 15th order directing the issuance of a bench warrant was not created
for the purpose of proving some fact in anticipation of criminal prosecution. The
court order was prepared for the purpose of obtaining Phipps' presence in court.
Similarly, in State v. Hart, Division Two of this court determined that an
order to appear was not testimonial because it was prepared to inform the
defendant of his obligation to appear in court at a certain date and time.13
"Nontestimonial statements do not implicate the confrontation clause and
are admissible if they fall within a hearsay exception."14 Certified court records fall
within the recognized hearsay exception for public records.15
Here, the minute entry and court order are nontestimonial certified court
records falling within the public records exception to the hearsay rule.
We conclude the trial court did not violate Phipps' confrontation right under
the Sixth Amendment in admitting the minute entry and order.
III. VPA/DNA Collection Fee
Phipps contends the sentencing court violated his right to due process by
ordering him to pay a $500 VPA and $100 DNA collection fee without first inquiring
into his ability pay such costs.
13 195 Wash. App. 449, 460-61, 381 P.3d 142(2016).
14 Hubbard, 169 Wn. App. at 187(quoting State v. Saunders, 132 Wash. App.
592, 601, 132 P.3d 743(2006)).
15 Id. (citing RCW 5.44.010, .040; State v. Benefiel, 131 Wash. App. 651, 654-
55, 128 P.3d 1251 (2006)).
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No. 75763-6-1/7
"[U]nlike discretionary legal financial obligations, the legislature
unequivocally requires imposition of the mandatory DNA fee and the mandatory
victim penalty assessment at sentencing without regard to finding the ability to
pay."16 Accordingly, Washington courts have routinely rejected identical due
process challenges to mandatory fees.17
Because Phipps does not assert any new arguments, we follow existing
case law and conclude that imposition of the VPA and DNA collection fee did not
violate Phipps' right to due process.
Ill. Criminal Filing Fee
On cross appeal, the State argues the court erred in failing to impose a
mandatory criminal filing fee.
"[A] $200 criminal filing fee is required by RCW 36.18.020(2)(h), irrespective
of the defendant's ability to pay."18
At sentencing, the State asked the court to impose mandatory legal
financial obligations, including the criminal filing fee. The court imposed the
mandatory VPA and DNA fee and stated, "I do believe that he is indigent at this
point. So I am going to waive the other costs, fees and assessments."19
16State v. Shelton, 194 Wn. App. 660,673-74, 378 P.3d 230 (2016); see
also State v. Mathers, 193 Wash. App. 913, 918, 376 P.3d 1163(2016)
("Washington courts have consistently held that a trial court need not consider a
defendant's past, present, or future ability to pay when it imposes either DNA or
VPA fees.").
17 See Mathers, 193 Wash. App. at 927-29.
18 Statev. Lundy, 176 Wash. App. 96, 103, 308 P.3d 755(2013).
19 RP (Aug. 30, 2016) at 15.
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No. 75763-6-1/8
We conclude the trial court erred in failing to impose the mandatory filing
fee. Therefore, we remand for imposition of a $200 criminal filing fee.
WE CONCUR:
SCN9U1V(a
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