State Of Washington, V Nicolas A. Clark

Filed
Washington State
Court of Appeals
Division Two
June 22, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54069-0 II
Respondent,
v.
NICOLAS AARON CLARK, UNPUBLISHED OPINION
Appellant.
WORSWICK, J.—Nicolas Aaron Clark appeals his convictions and sentence for three
counts of sexual exploitation of a minor, two counts of first degree child molestation, and six
counts of first degree possession of depictions of a minor engaged in sexually explicit conduct.
Clark argues that the trial court erred when it denied his motion to suppress evidence seized from
his electronic devices. He argues that the affidavit in support of a search warrant was
insufficient to establish probable cause. Clark also argues that the independent source doctrine
does not apply to another warrant police officers later obtained to cure any defects in the first
warrant. Clark also raises several additional arguments in a statement of additional grounds for
review (SAG).
We hold that the first warrant was supported by probable cause and, accordingly, we do
not reach whether the independent source doctrine applies to the later warrant. We further hold
that Clark’s SAG claims fail to raise any meritorious issues. Thus, we affirm.
No. 54069-0-II
FACTS
I. NCMEC TIP AND FIRST WARRANT
On August 30, 2018, Vancouver Police Department Sergeant Joe Graaff assigned
Detective Chadd Nolan an investigative tip from the National Center for Missing and Exploited
Children (NCMEC). The tip explained that Tumblr.com, an electronic service provider,
submitted information to the NCMEC tip line that an image of suspected child pornography had
been uploaded through its servers.1 Tumblr.com reported “that on or about June 23, 2018, a
subject using the Uniform Resource Locator (URL) funrufus.tumblr.com attempted to, or did,
pass an image identified as child pornography through their servers.” Clerk’s Papers (CP) at
235. The tip included two Internet Protocol (IP) addresses of the subject at the time of the
incident. Based on the IP addresses, police officers were able to verify that the subject spent
time in Vancouver.
Based on this tip, Detective Nolan filed an affidavit for a search warrant on September
26, 2018. The affidavit requested subscriber information from Verizon and Comcast related to
the IP addresses, as well as information from Tumblr.com and Yahoo related to the URL and
e-mail accounts provided in the tip. Detective Nolan included information describing his
experience and training in cybercrime, facts about Tumblr.com and the “funrufus” account, and
the IP addresses. Detective Nolan’s affidavit described the image:
The suspect image contains a single pre-pubescent female being directed
to pose for the camera. The child is clothed in underwear. However the child has
been instructed to pull aside her underwear exposing her vagina. The child’s legs
are separated making the focal point of the picture the vagina area.
1
Tumblr.com is a social network website that allows individuals to share photos, videos, and
other media through its platform.
2
No. 54069-0-II
CP at 132. The image was not attached to the affidavit.
Based on this affidavit, the trial court granted a search warrant (September 2018 warrant)
to collect subscriber information from Verizon related to the suspect IP addresses. Verizon
provided responsive data that showed accounts connected to the IP addresses were registered to a
Camas address owned by Clark and his wife, and a business in Vancouver owned and operated
by Clark. Verizon also provided a cellular telephone number associated with the suspect cell
phone that matched Clark’s number.
II. SECOND WARRANT AND ARREST
On October 1, 2018, based on the information collected from Verizon, police officers
sought and received a second search warrant (October 2018 warrant) to search Clark’s residence
and business. The October 2018 warrant included permission to search any electronic devices
discovered at the house or business.
On October 5, 2018, one team of police officers searched Clark’s home while another
team searched his business. Police officers rang the doorbell at Clark’s home, and Clark
answered the door. Officers explained to Clark that they had a search warrant and asked him to
step outside, which he did. Clark had an iPhone on his belt that officers seized. Officers
examined the phone and determined that the number matched the one provided by Verizon. A
search of the contents of the phone revealed more than 1,000 images depicting children engaged
in sexual conduct. The phone also contained stored accounts, including a Tumblr.com
application, with “funrufus” as the user name. Officers arrested Clark.
Subsequent analysis of other electronic devices registered to Clark and seized from the
home, revealed other caches of child pornography. On October 9, 2018, the State charged Clark
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No. 54069-0-II
with five counts of first degree possession of depictions of a minor engaged in sexually explicit
conduct and one count of second degree possession of depiction of a minor engaged in sexually
explicit conduct.
Some images found on Clark’s devices depicted a female child in a pink nightgown
touching an adult penis, and other images depicted the hand of an adult male. By comparing bed
sheets and underwear located in Clark’s house to those depicted in the photographs, police
determined that these images were created at Clark’s residence.
III. THIRD WARRANT AND AMENDED INFORMATION
On December 4, 2018, Detective Nolan requested and received a third warrant
(December 2018 warrant), based on the comparisons of the photographs, to re-enter the Clark
residence to seize clothing and bed sheets observed in the images. Police officers also obtained
photographs of Clark’s exposed body. During the search, officers seized bed sheets and a
nightgown matching those in the images. Clark’s wife then identified a child in the images as
someone she knew and was closely associated with.
On December 6, 2018, the State filed an amended information. In addition to the charges
of possession of depictions of a minor engaged in sexually explicit conduct, the State added one
count of first degree rape of a child, three counts of sexual exploitation of a minor, and two
counts of first degree child molestation. The State also alleged sentencing aggravators of using a
position of trust or confidence to facilitate the commission of the crimes, RCW 9.94A.535(3)(n),
and the free crime aggravator under RCW 9.94A.535(2)(c).
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No. 54069-0-II
IV. MOTION TO SUPPRESS EVIDENCE AND FOURTH WARRANT
On February 15, 2019, Clark filed a motion to suppress all evidence collected during the
course of the police investigation, arguing that Detective Nolan’s affidavit in support of the
September 2018 warrant failed to establish probable cause. In response to Clark’s motion,
Sergeant Graaff sought an additional warrant (April 2019 warrant) based on an affidavit signed
by Sergeant Graaff that did not include any information gained as a result of the first warrant.
Clark stipulated that none of the evidence seized following the first warrant was used in Sergeant
Graaff’s affidavit.
Sergeant Graaff’s affidavit, filed in April 2019, again requested subscriber information
from Verizon. The affidavit also included information from the tip regarding NCMEC and
Tumblr.com, the information about the “funrufus” account, and the IP address information.
Sergeant Graaff’s affidavit contained a more graphic description of the image provided in the tip
and did not refer to the child being directed or instructed to pose in any particular manner. The
trial court signed the April 2019 search warrant. However, police did not serve the warrant on or
seek the information from Verizon.
The trial court held a CrR 3.6 hearing on Clark’s motion to suppress on August 19, 2019.
The State argued that both the September 2018 warrant and the April 2019 warrant were
supported by probable cause and that if the trial court disagreed, the evidence would still be
admissible under the independent source doctrine. The trial court agreed with the State. In its
conclusions of law regarding the September 2018 warrant’s probable cause, the trial court
concluded:
3.3 The description of the image of the juvenile female in question meets the
definition of sexually explicit conduct found in RCW 9.68A.870.
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No. 54069-0-II
3.4 The affidavit’s description that suspected child pornography had been
uploaded and that the URL funrufus.tumblr.com passed or attempted to pass an
image identified as child pornography through their servers is a sufficient
description of the defendant’s alleged criminal activity.
3.5 While the use of the term “child pornography” may not satisfy the
particularity requirement of the Fourteenth Amendment, the detailed description
of the photograph found in the search warrant affidavit satisfies the particularity
requirement.
....
3.7 . . . In the case at bench, the focus of the image is on a minor female’s vagina
with legs spread and underwear pulled aside. The inference is that the child was
posed for sexual stimulation.
3.8 The search warrant affidavit establishes probable cause.
CP at 235-36.
Likewise, regarding the April 2019 warrant’s probable cause, the trial court concluded:
4.1 Washington [S]tate recognizes the independent source doctrine as an
exception to the exclusionary rule. State v. Coates, 107 Wn.2d 882, 887 (1987)
(explaining that a search warrant may be upheld if the affidavit contains
sufficient facts to establish probable cause independent of any illegally obtained
information in the affidavit).
4.2 The second search warrant affidavit establishes probable cause.
CP at 236 (citation omitted).
V. TRIAL AND SENTENCE
Clark waived his right to a trial by jury and the case proceeded to a bench trial on
September 10, 2019. In Clark’s waiver, he stated, “I understand that by waiving my right to a
jury trial, I am still presumed innocent but that the Judge alone will decide whether the State has
proven my guilt beyond a reasonable doubt.” CP at 233.
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No. 54069-0-II
At trial, Clark’s wife identified a girl depicted in images recovered by police, testifying
that she was a child Clark’s wife knew and was closely associated with. She testified that the
child would have been eight years old or younger in the images. Clark’s wife was also able to
identify Clark’s body parts in the images.
The trial court found Clark guilty of three counts of sexual exploitation of a minor, two
counts of first degree child molestation, and six counts of first degree possession of depictions of
a minor engaged in sexually explicit conduct.2 The trial court found Clark not guilty on the
charge of first degree rape of a child. The trial court also found Clark used his position of trust
or confidence to facilitate the commission of the crimes and also added the free crime aggravator
under RCW 9.94A.535(2)(c).3 The trial court sentenced Clark to an exceptional sentence of 258
months based on the aggravating factors.
Clark appeals his judgment and sentence.
ANALYSIS
I. SEPTEMBER 2018 AFFIDAVIT
Clark argues that the trial court erred when it denied his motion to suppress because
Detective Nolan’s affidavit was insufficient to establish probable cause for the September 2018
2
The State also charged Clark with one count of witness tampering in an amended information
on the day of trial. CP at 240. Although the trial court found Clark guilty of witness tampering
beyond a reasonable doubt in an oral ruling, the court did not mention this charge at sentencing
or include the charge or conviction in the judgment and sentence form or the warrant of
commitment to the Department of Corrections. Compare Verbatim Report of Proceedings at 318
and CP at 364-65, 381-82. It is unclear from the record on appeal whether this omission was
intentional or due to oversight.
3
RCW 9.94A.535(2)(c) applies when the defendant has committed multiple current offenses and
the defendant’s high offender score results in some of the current offenses going unpunished.
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No. 54069-0-II
warrant. Specifically, he argues that Detective Nolan’s affidavit was speculative, that it was
impossible to tell from the affidavit if illegal activity took place, and that the image may have
been a “‘selfie’” that was not illegal to possess. Br. of Appellant at 15. He also argues that the
independent source doctrine does not apply to Sergeant Graaff’s affidavit supporting the April
2019 warrant. We disagree and hold that Detective Nolan’s affidavit was sufficient to support a
finding of probable cause. Accordingly, we do not reach the independent source doctrine issue.
A magistrate may issue a warrant only on a showing of “probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.” U.S. CONST. amend. IV. “The Constitution requires that a detached and
neutral magistrate or judge make the determination of probable cause.” State v. Maddox, 152
Wn.2d 499, 505, 98 P.3d 1199 (2004). “We generally review the issuance of a search warrant
only for an abuse of discretion.” State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).
During a suppression hearing, a “trial court acts in an appellate-like capacity,” reviewing the
magistrate’s decision. Neth, 165 Wn.2d at 182.
We defer to the magistrate’s determination on probable cause but review the trial court’s
legal conclusions de novo. Neth, 165 Wn.2d at 182. Our review is limited to the four corners of
the affidavit filed in support of the warrant. Neth, 165 Wn.2d at 182. A magistrate may issue a
search warrant only where the affidavit shows facts and circumstances sufficient for a reasonable
person to conclude there is a probability that the defendant is involved in criminal activity and
that evidence of criminal activity will be found at the place to be searched. Neth, 165 Wn.2d at
182; Maddox, 152 Wn.2d at 509. “It is only the probability of criminal activity, not a prima facie
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No. 54069-0-II
showing of it, that governs probable cause. The magistrate is entitled to make reasonable
inferences from the facts and circumstances set out in the affidavit.” Maddox, 152 Wn.2d at 505.
We may take the affiant’s experience and expertise into account when determining
whether probable cause was established. Maddox, 152 Wn.2d at 511. However, the affidavit
must be based on more than the affiant’s suspicions or beliefs. Neth, 165 Wn.2d at 182. We do
not review the affidavit “hypertechnically;” we apply a commonsense analysis. Neth, 165 Wn.2d
at 182. “All doubts are resolved in favor of the warrant’s validity.” Maddox, 152 Wn.2d at 509.
Possession of depictions of a minor engaged in sexually explicit conduct is a crime.
RCW 9.68A.070. Under RCW 9.68A.011(4)(f), “sexually explicit conduct” includes:
[A]ctual or simulated . . . [d]epiction of the genitals or unclothed pubic or rectal
areas of any minor, or the unclothed breast of a female minor, for the purpose of
sexual stimulation of the viewer. For the purposes of this subsection (4)(f), it is
not necessary that the minor know that he or she is participating in the described
conduct, or any aspect of it.
A commonsense analysis of Detective Nolan’s affidavit shows that it set forth facts and
circumstances sufficient for a reasonable person to conclude there was a probability of criminal
activity. Neth, 165 Wn.2d at 182. Detective Nolan described Tumblr.com, explained subscriber
information as it related to Verizon, the “funrufus” account, and IP addresses. He included
information from Tumblr.com and Yahoo related to the URL and e-mail accounts provided in
the tip. Detective Nolan also described his experience and training in cybercrime. Detective
Nolan described the image so that the reader could determine that (1) it contained a single pre-
pubescent female clothed in underwear, (2) with the underwear pulled aside to expose her
vagina, and (3) the child’s legs are separated making the focal point of the picture the vagina
area.
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No. 54069-0-II
The description of the image, when taken together with the affidavit’s description of the
Tumblr.com site, Detective Nolan’s experience, and the other information from the NCMEC tip
is sufficient to make a reasonable inference that criminal activity would be found by a search.
Maddox, 152 Wn.2d at 505, 509. The image described meets the statutory definition of a
“depiction of a minor engaged in sexually explicit conduct” under RCW 9.68A.070 and
9.68A.011(4)(f). Because Tumblr.com is used to share photos, and because the image was
passed through Tumblr.com’s servers from an IP address located in Vancouver, it is reasonable
to infer from the affidavit that a person in Vancouver was involved in criminal activity. Thus,
the September 2018 warrant was supported by sufficient probable cause.
Clark argues that Detective Nolan’s affidavit was speculative. He argues that the
affidavit was impermissibly based on Detective Nolan’s suspicions and beliefs. See Neth, 165
Wn.2d at 183. Clark bases this argument on Detective Nolan’s description of the image, which
stated that the child depicted was “directed” to pose in a certain manner and that the child was
“instructed” to pull aside her underwear, even though there is no information in the still image
that suggests direction or instruction. Br. of Appellant at 15-16. Clark argues that those
speculations were critical to the magistrate’s determination. Furthermore, he argues that because
the description was “based only on suspected child pornography, not actual child pornography,”
it was insufficient to support probable cause. Br. of Appellant at 16 (emphasis added). We
disagree.
As explained above, it is possible to infer from the description of the image that it
contained a depiction of a minor engaged in sexually explicit conduct. The “directed” and
“instructed” terms used, even assuming they are speculative, contribute nothing to a reasonable
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No. 54069-0-II
person making an inference that the image might contain child pornography. Moreover, that the
image may have been only suspected child pornography does not weaken the inference of
criminal activity because the affiant need create only the reasonable inference of the probability
of criminal activity, not a prima facie showing of it. Neth, 165 Wn.2d at 182; Maddox, 152
Wn.2d at 505.
Clark also argues that it is impossible to tell from the affidavit “whether the user was
uploading or downloading the image, sending it to someone, or having it sent to them by
someone else.” But it does not matter. The suspected crime was one of possession. RCW
9.68A.070. It would not matter which of the actions the defendant was taking; any or all may
have established possession.
Finally, Clark argues that the image may be a “‘selfie’” photograph taken by the girl and
as such would not be illegal to possess. Br. of Appellant at 15. To support this argument, Clark
cites to State v. Grannis, 84 Wn. App. 546, 550-51, 930 P.2d 327 (1997) and State v. Chester, 82
Wn. App. 422, 428, 918 P.2d 514 (1996), aff’d, 133 Wn.2d 15, 940 P.2d 1374 (1997). This
argument is flawed.
Grannis and Chester interpreted former RCW 9.68A.011(3)(c) (1989), which stated that
an image became explicit only when the behavior of the subject in a given image was “‘for the
purpose of sexual stimulation of the viewer.’” Grannis, 84 Wn. App. at 549 (quoting former
RCW 9.68A.011(3)(c)); Chester, 82 Wn. App. at 425 (quoting former RCW 9.68A.011(3)(c)).
In 2010, the legislature revised the statute to delete that language and created RCW
9.68A.011(4)(f) as it reads today. ENGROSSED SUBSTITUTE H.B. 2424, 61st Leg., Reg. Sess.
(Wash. 2010); State v Powell, 181 Wn. App. 716, 728, 326 P.3d 859 (2014).
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No. 54069-0-II
We explained the change in Powell:
Following this amendment, RCW 9.68A.011(4)(f)’s plain meaning is that the
person who creates the depiction, rather than the person who creates the
exhibition that is depicted, must have the “purpose of sexual stimulation of the
viewer.” Stated another way, the creator of the “exhibition that is depicted” is the
minor or one who initiates, contributes to, or influences the minor’s conduct, but
the creator of the “depiction” is the person who creates the image, such as a
photographer.
RCW 9.68A.011(4)(f) lends further support to this interpretation with the
added language stating that “it is not necessary that the minor know that he or she
is participating in the described conduct, or any aspect of it.” The plain meaning
of this language shows that the legislature intended to extend criminal liability to
those who possess depictions made by secretly recording minors without their
knowledge.
181 Wn. App. at 728 (quoting RCW 9.68A.011(4)(f)).
Thus, for the purposes of supporting probable cause here, the description of the image
and other facts in the affidavit were sufficient to raise a reasonable inference that illegal conduct
took place. Even assuming that it was impossible to tell whether or not the child took the image
as a selfie, the description of the image and the facts surrounding its transmission through
Internet servers on a social media platform is enough for a reasonable person to conclude that
there was a probability of illegal activity. RCW 9.68A.011(4)(f). Accordingly, we hold that
Detective Nolan’s affidavit was sufficient to establish probable cause for the September 2018
warrant. Thus, we need not reach whether Sergeant Graaff’s affidavit established probable cause
under the independent source doctrine for the April 2019 warrant.
II. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Clark raises eight additional issues in his SAG. Clark raises multiple issues for the first
time on appeal, reaches outside the record, re-raises issues argued in his brief, and he raises no
issue meriting reversal.
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A. Legal Principles
A SAG must adequately “inform us of the nature and occurrence of the alleged errors.”
State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013). We do not review matters outside the
record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). Issues
involving facts outside of the record are properly raised in a personal restraint petition, rather
than a SAG. Calvin, 176 Wn. App. at 26.
B. Sixth Amendment Right to Face Accuser
Clark argues he was denied his right to face his accuser under the Sixth Amendment to
the United States Constitution. Clark argues that a Tumblr.com employee who submitted the tip
was his accuser and that he was denied the opportunity to examine the declarant in violation of
the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004). We do not reach this argument because Clark did not object below and did not
preserve the issue for appeal.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI.
But an objection must be made in the trial court to preserve the error for appeal. State v. O’Cain,
169 Wn. App. 228, 235, 279 P.3d 926 (2012) (“[T]he right to confrontation must be asserted at
or before trial or be lost.”); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 313-14,
129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (claim of error premised on the confrontation clause
must be asserted at or before trial or be lost).
Here, Clark knew that the State intended to use the Tumblr.com tip against him because it
was part of the September 2018 affidavit and search warrant. To preserve this issue, Clark then
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No. 54069-0-II
had to object and request the Tumblr.com employee to appear at trial. Because he failed to do
so, Clark has waived the right to assign error here.
C. Fifth Amendment Right against Self-Incrimination and Sixth Amendment Right to
Counsel
Clark argues that police officers violated his rights under the Fifth and Sixth
Amendments to the United States Constitution by coercing him into revealing the password to
his cell phone and computer. Clark did not raise this error in the trial court and he draws on facts
outside the record on appeal to make this argument. Because Clark raises this issue for the first
time on appeal, we do not consider it.
We will not generally review an error not raised in the trial court. RAP 2.5(a). However,
RAP 2.5(a)(3) permits a party to raise initially on appeal a claim of “manifest error affecting a
constitutional right.” The error must be both manifest and truly of constitutional magnitude. In
re Det. of Reyes, 176 Wn. App. 821, 842, 309 P.3d 745, 315 P.3d 532 (2013). A claim is
manifest if the facts in the record show that the constitutional error prejudiced the defendant’s
trial. McFarland, 127 Wn.2d at 333. Where a party claims constitutional error, we preview the
merits of the claim to determine whether the argument is likely to succeed. State v. Walsh, 143
Wn.2d 1, 8, 17 P.3d 591 (2001). However, if the necessary facts are not in the record, “no actual
prejudice is shown and the error is not manifest.” McFarland, 127 Wn.2d at 333.
Here, Clark reaches outside the record to argue that police officers coerced him into
revealing his passwords. Because the facts he draws on are not in the record, he does not show
prejudice and cannot show a manifest error. Thus, under RAP 2.5, we do not consider his claim.
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No. 54069-0-II
D. Neutral and Detached Magistrate
Clark argues that the magistrate who issued the September 2018 search warrant was not
neutral and detached in her finding of probable cause. We disagree.
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution require that a neutral and detached magistrate make the determination
of probable cause to issue a warrant. Maddox, 152 Wn.2d at 505; State v. Byrd, 178 Wn.2d 611,
629, 310 P.3d 793 (2013). This protection exists to ensure the decision is based on facts
presented to the magistrate, instead of being made by police officers involved in the
investigation. State v. Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012).
We review the magistrate’s decision to ensure the magistrate did “‘not serve merely as a
rubber stamp for the police.’” Lyons, 174 Wn.2d at 360 (quoting Aguilar v. Texas, 378 U.S. 108,
111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), abrogated on other grounds by Illinois v. Gates,
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). The party challenging the neutrality of
a magistrate must show that the judge did not provide independent judgment over the police
request and that the subsequent decision was not totally divorced from the investigation. See
Staats v. Brown, 139 Wn.2d 757, 777, 991 P.2d 615 (2000); State v. Smith, 16 Wn. App. 425,
427-28, 558 P.2d 265 (1976).
Here, Clark makes no showing that the magistrate’s function was not totally divorced
from the police officers’ search. There is nothing in the record on appeal that suggests the
reviewing magistrate provided anything other than independent judgment over the affidavit and
warrant decision. Thus, Clark’s argument fails.
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No. 54069-0-II
E. Probable Cause
Clark re-raises the argument from his brief that Detective Nolan’s affidavit arising from
the NCMEC and Tumblr.com tip was insufficient to support probable cause. For the reasons
explained above, this argument fails.
F. Independent Source Doctrine
Clark re-raises the argument from his brief that the independent source doctrine does not
apply to the affidavit Sergeant Graaff issued to cure any faults with the September 2018 warrant.
Because we hold that Detective Nolan’s affidavit supports probable cause, we do not reach this
argument.
G. Witness Tampering: Sufficiency of the Evidence
Clark argues that there was insufficient evidence to convict him of witness tampering.
Under RAP 2.2(a)(1), a party may appeal only from a final judgment entered below. Under RAP
2.4(a), we review the decision designated in the notice of appeal. Here, neither the final
judgment below nor Clark’s notice of appeal include a conviction for witness tampering.
Accordingly, we do not consider this argument.
H. Offender Score Calculation
Clark argues that the trial court incorrectly calculated his offender score. He argues that
the trial court based his score on his current convictions but that the trial court should have based
it only on the score of his past convictions. We disagree.
We review a trial court’s offender score calculation de novo. State v. Schwartz, 194
Wn.2d 432, 438, 450 P.3d 141 (2019). Trial courts must calculate offender scores by
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No. 54069-0-II
determining a defendant’s criminal history based on his or her prior convictions under the
formula in RCW 9.94A.525. Schwartz, 194 Wn.2d at 438.
RCW 9.94A.525(1) provides: “Convictions entered or sentenced on the same date as the
conviction for which the offender score is being computed shall be deemed ‘other current
offenses’ within the meaning of RCW 9.94A.589.” Under RCW 9.94A.589(1)(a), “the sentence
range for each current offense shall be determined by using all other current and prior
convictions as if they were prior convictions for the purpose of the offender score.” The
Sentencing Reform Act of 1981, chapter 9.94A RCW, does not define “current offense,” but our
Supreme Court has defined it “functionally as convictions entered or sentenced on the same
day.” In re Pers. Restraint of Finstad, 177 Wn.2d 501, 507, 301 P.3d 450 (2013). Indeed, our
courts have repeatedly held that current offenses are treated as prior convictions when
calculating an offender score, especially when imposing an exceptional sentence. State v.
France, 176 Wn. App. 463, 468, 308 P.3d 812 (2013) (citing RCW 9.94A.525(1)); State v.
Newlun, 142 Wn. App. 730, 742, 176 P.3d 529 (2008) (“[F]or purposes of computing the
offender score in relation to the imposition of an exceptional consecutive sentence, the
legislature has determined that current offenses are to be treated as ‘prior convictions.’”).
Here, Clark had no known prior felony convictions before his conviction in this case.
However, the trial court convicted Clark of 11 felonies. Based on these current offenses, the trial
court correctly calculated Clark’s offender score.
I. Right to Jury Trial on Sentencing Enhancements
Clark argues that he was denied a jury trial during sentencing when the trial court added
the free crime aggravator. He argues that the trial court was required to hold a jury trial to find
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facts that increase penalties beyond a statutory maximum under Blakely v. Washington, 542 U.S.
296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). But Clark waived his right to a trial by
jury, stating, “I understand that by waiving my right to a jury trial, I am still presumed innocent
but that the Judge alone will decide whether the State has proven my guilt beyond a reasonable
doubt.” CP at 233. Accordingly, Clark waived his right to trial by jury and therefore the trial
court at the bench trial properly considered the facts for Clark’s sentencing.
CONCLUSION
We hold that the September 2018 warrant was supported by probable cause, and we do
not reach the independent source doctrine question. We further hold that Clark’s SAG claims
fail to raise any meritorious issues. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Lee, C.J.
Sutton, J.
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