State Of Washington v. George Abraham Dillon

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 78592-3-I
Respondent, )
DIVISION ONE
v. )
GEORGE ABRAHAM DILLON, ) PUBLISHED OPINION
Appellant. ) FILED: February 3, 2020
__________________________________________________________________________________)
MANN, A.C.J. — George Dillon appeals his conviction and sentence for unlawful
imprisonment and third degree assault. Dillon contends that there was insufficient
evidence supporting the unlawful imprisonment conviction, that the knowledge
instruction relieved the State of its burden of proof, that the trial court improperly
admitted evidence of his after-arrest conduct at the hospital, and that the trial court
improperly imposed legal financial obligations (LFO) because he is indigent and his sole
source of income is his Social Security disability funds.
We remand to strike the LFO that he “pay supervision fees as determined by
DOC,” the interest accrual provision, and to clarify that the $500 victim assessment fee
may not be satisfied out of his Social Security disability funds. We affirm on all other
grounds.
No. 78592-3-112
On December21 2017, George Favors stopped at a 7-Eleven after he got off his
bus in Lynwood. Favors takes the bus because he has glaucoma, partial vision in his
right eye, and no vision in his left eye. When Favors entered the 7-Eleven, he was
listening to music on his large Bluetooth headphones.
Favors encountered Dillon standing near the entrance to 7-Eleven. Favors
noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors
thought that Dillon was panhandling and told him he did not have change. Favors
continued into the 7-Eleven.
Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished
making his purchase and started walking towards the exit. Dillon was standing three
feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over
there” and threatened to cut and shoot him. Favors feared that the situation would
escalate and went to the back of the store.
Favors tried to leave a second time and Dillon said “I told you one time; get your
ass back over there.” Favors, who is African-American, recalled hearing a racial slur.
Favors discreetly called 911 on his Bluetooth headphones. Other 7-Eleven customers
were entering and exiting without issue. The two store clerks were telling Dillon to
leave. Favors indicated that Dillon appeared to be intimidating the clerks.
Sergeant Joshua Kelsey of the Lynwood Police Department responded to the
call. When Sergeant Kelsey arrived, he found Dillon outside the 7-Eleven, talking to
someone in an SUV. Sergeant Kelsey placed Dillon in handcuffs and as he was
walking him to his patrol car, Dillon “rear[ed] his head back” and hit Sergeant Kelsey on
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No. 78592-3-113
his forehead and the bridge of his nose. Sergeant Kelsey recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.
Sergeant Kelsey took Favors’s statement. The store clerks declined to provide a
written statement. Sergeant Kelsey took Dillon to the hospital because Dillon had
preexisting injuries on his face. At the hospital, Dillon exhibited mood swings from
anger to happiness. Dillon made threatening statements to Sergeant Kelsey and
hospital staff, but also talked about loving Sergeant Kelsey and the hospital staff and
discussed liking music. Sergeant Kelsey was not treated for any injuries on his face
and did not take any pictures of his face where Dillon hit him.
The State initially charged Dillon with third degree assault of Sergeant Kelsey
and harassment of Favors, but amended the information to include unlawful
imprisonment of Favors. The only witnesses at trial were Favors and Sergeant Kelsey.
The defense objected to testimony about Dillon’s misconduct at the hospital, but the
court ruled that the evidence demonstrated Dillon’s state of mind, level of intoxication,
and completed the story for the jury.
Favors testified inconsistently about whether he had his Bluetooth headphones
on his ears the whole time he was in 7-Eleven, or if he took them off and put them
around his neck before paying for his snacks and put them back on when he called 911.
Additionally, Sergeant Kelsey testified that Dillon was outside the 7-Eleven when he
arrived and Favors testified that Dillon was inside the 7-Eleven when Sergeant Kelsey
arrived.
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No. 78592-3-114
The defense requested a jury instruction on voluntary intoxication and the State
did not object. The jury acquitted Dillon of felony harassment, but convicted him of third
degree assault and unlawful imprisonment.
During sentencing, the trial court recognized Dillon’s history of alcohol and drug
abuse and mental illness and imposed a drug offender sentencing alternative. The
court imposed $500 in mandatory LFOs and ordered Dillon to make payments of $10 a
month starting 60 days after his release. The court also ordered Dillon to pay for his
supervision costs after release. Dillon appeals.
We review instructional errors raised for the first time on appeal for manifest
constitutional error. RAP 2.5(a); Statev. O’Hara, 167 Wash. 2d 91, 100-01, 217 P.3d 756(2009). The defendant must demonstrate that “(1) the error is manifest, and (2) the
error is truly of constitutional dimension.” O’Hara, 167 Wn.2d at 98. An error is
manifest when it results in actual prejudice. O’Hara, 167 Wn.2d at 99. “To demonstrate
actual prejudice, there must be a plausible showing by the appellant that the asserted
error had practical and identifiable consequences in the trial of the case.” O’Hara, 167
Wn.2d at 99 (internal quotations omitted). Even when there is an error of constitutional
magnitude, the claim is subject to a harmless error analysis. O’Hara, 167 Wn.2d at 99.
When determining whether sufficient evidence supports a criminal conviction, the
court views the evidence in the light most favorable to the prosecution. State v. Kintz,
169 Wash. 2d 537, 551, 238 P.3d 470 (2010). We determine, given the facts, whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Kintz, 169 Wn.2d at 551. Direct and circumstantial evidence are
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No. 78592-3-1/5
equally reliable in determining the sufficiency of the evidence. Kintz, 169 Wn.2d at 551.
Inferences based on circumstantial evidence, however, must be reasonable and cannot
be based on speculation. State v. Vasguez, 178 Wash. 2d 1, 16, 309 P.3d 318 (2013).
A.
Dillon contends that the trial court erred when it instructed the jury that Dillon
“must have knowledge of the facts, circumstances, or results that constitute a crime,
rather than knowledge that the facts, circumstances, and results are a crime.” This is
so, Dillon argues, because under State v. Warfield, 103 Wash. App. 152, 5 P.3d 1280(2000), the State must prove beyond a reasonable doubt that Dillon knowingly acted
without legal authority. We disagree.
In order to establish the crime of unlawful imprisonment, the State must prove
that the defendant “knowingly restrain[ed] another person.” RCW 9A.40.040. The word
“restrain” has four components: “(1) restricting another’s movement; (2) without that
person’s consent; (3) without legal authority; and (4) in a manner that substantially
interferes with that person’s liberty.” Warfield, 103 Wn. App. at 157; RCW 9A.40.010(6).
In Warfield, the court held that “knowingly” modified all parts of “restrain,”
including “without legal authority.” Warfield, 103 Wn. App. at 156. Thus, the State was
required to prove, beyond a reasonable doubt, that the defendant knew he was acting
without legal authority. Warfield, 103 Wn. App. at 156. The defendants in Warfield
were bounty hunters and believed they had legal authority to extradite the victim, Mark
DeBolt, to Arizona under a misdemeanor arrest warrant. Warfield, 103 Wn. App. at 155.
Since the Arizona warrant was for a misdemeanor, it had no lawful effect in Washington.
Warfield, 103 Wn. App. at 155. The defendants believing the warrant gave them legal
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No. 78592-3-116
authority to hold DeBolt, acted with good faith. Warfield, 103 Wn. App. at 155-56. The
court reversed the defendants’ convictions because the State failed to prove they knew
they were acting without legal authority. Warfield, 103 Wn. App. at 155-56.
State v. Johnson, 180 Wash. 2d 295, 304, 325 P.3d 135 (2014), however, limited
the holding of Warfield. The Johnson court determined that Warfield “is limited to those
unique cases where the defendant had a good faith belief that he or she had legal
authority to imprison a person.” Johnson, 180 Wn.2d at 304. While the issue in
Johnson was whether the information needed to contain the definition of “restrain” as an
essential element of unlawful imprisonment, the court explained that the State does not
have to prove a defendant knew he was acting without legal authority, unless facts exist
to suggest the defendant had a good faith belief he had legal authority. Johnson, 180
Wn.2d at 303-04.
Consequently, after Johnson, where a claim is raised that a defendant had a
good faith belief that they were acting with legal authority, the State must prove that the
defendant actually knew that they had no legal authority. But, where no claim of a good
faith belief of lawful authority is raised, the State need only prove that the defendant
acted knowingly to restrain.
Here, the State did not have to prove that Dillon knew he was acting without legal
authority because there were no facts suggesting Dillon believed he had legal authority
to restrain Favors. Johnson, 1 80 Wn.2d at 304.
Regardless, the “law of the case” doctrine applies here; the State must prove the
elements included in the to-convict instruction, even when those elements may be
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No. 78592-3-1/7
“otherwise unnecessary elements.” State v. Johnson, 188 Wash. 2d 742, 760, 399 P.3d
507 (2017). Jury instruction 13, the to-convict instruction, stated:
To convict the defendant of the crime of Unlawful Imprisonment as
charged in Count 3, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about the 21st day of December, 2017, the
defendant restrained the movements of George Favors in a manner that
substantially interfered with his liberty;
(2) That such restraint was accomplished by physical force or
intimidation;
(3) That such restraint was without legal authority;
(4) That, with regard to elements (1), (2), and (3), the defendant
acted knowingly; and
(5) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements then it will be your duty
to return a verdict of not guilty.
As discussed above, Johnson clarified that the defendant’s knowledge that they
lacked legal authority is not a necessary element of unlawful imprisonment unless the
defendant claims they had a good faith belief they were acting with lawful authority.
Consequently, instruction 13 included an erroneous mens rea requirement.1 But,
because instruction 13 included the added mens rea element, the mens rea element
1Dillon correctly points out that instruction 13 was based on 11 WASHINGTON PRAcTIcE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 39.16 (4th ed. 2016) (WPIC). It appears WPIC
39.16 was based on the language in Warfield and, after Johnson, contains an incorrect statement of law.
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No. 78592-3-1/8
become the law of the case and required the State to prove that Dillon knew he was
acting without legal authority.
The State presented sufficient evidence that a reasonable juror could find beyond
a reasonable doubt that Dillon knew he was acting without legal authority. The threats
that Dillon made had no lawful purpose. Depending on the level of intoxication, a
person under the influence can still form the requisite intent to know that their actions
are unlawful. Dillon made threats to “cut” and “shoot” Favors, both of which
demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at
Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon
knew his actions were unlawfully restraining Favors. Dillon did not say anything that
indicated he thought he had legal authority to restrain Favors. Thus, sufficient evidence
exists to support that Dillon knew he was acting without legal authority.2
B.
Next, Dillon contends that State v. Kinchen, 92 Wash. App. 442, 963 P.2d 928(1998), requires the State to prove that Favors had no reasonable means of escape as
an element that Dillon knowingly “restrained the movements of George Favors in a
manner that substantially interfered with his liberty,” and that the State presented
insufficient evidence that there was no escape. We disagree.
2 Dillon also contends that the trial court incorrectly instructed the jury on the definition of
knowledge, which also relieved the State of its burden to prove that Dillon knew he was acting without
legal authority, Instruction 11 stated:
A person knows or acts knowingly or with knowledge with respect to a fact, circumstance,
or result, when he or she is actually aware of that fact, circumstance, or result. It is not
necessary that the person know that the fact, circumstance, or result, is defined by law as
being unlawful or an element of a crime.
(Emphasis added); see also WPIC 10.02. Because instruction 11 is an accurate statement of the law, the
trial court did not err by giving the instruction.
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No. 78592-3-1/9
Restraint is “without consent” if it is accomplished by physical force, intimidation,
or deception. RCW 9A.40.01 0(6). “A substantial interference is a real or material
interference with the liberty of another as contrasted with a petty annoyance, a slight
inconvenience, or an imaginary conflict.” State v. Washincgon, 135 Wash. App. 42, 50,
143 P.3d 606 (2006) (internal quotations omitted).
It is a defense to unlawful imprisonment that the victim had a means of escape.
“Restraint” has four components and based on the facts of this case, if means of escape
had been Dillon’s defense, it could have negated either restraining another’s movement
or restraining in a manner that substantially interferes with a person’s liberty. Means of
escape “does not automatically preclude prosecution from unlawful imprisonment. But
for the State to succeed on this theory, the known means of escape must present a
danger or more than a mere inconvenience.” Kinchen, 92 Wn. App. at 452, n.16.
First, Kinchen does not require that the State prove there was an absence of a
reasonable means of escape. In Kinchen, the court held there was insufficient evidence
to support a father’s conviction for unlawful imprisonment of his two sons, because the
sons had a reasonable means of escape. Kinchen, 92 Wn. App. at 452. The two boys,
ages 8 and 9, had Attention Deficit Disorder (ADD) and were “virtually uncontrollable.”
Kinchen, 92 Wn. App. at 444. Because of this, the father restricted their access to the
refrigerator and kitchen cabinets, occasionally locked them in the bathroom as
punishment, and put locks on their bedroom door. Kinchen, 92 Wn. App. at 445. The
boys had keys to the bedroom, but they lost them and instead, used a window to enter
and exit their bedroom. Kinchen, 92 Wn. App. at 452. At other times, the sliding glass
door was left unlocked giving the boys access to the main living area of house.
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No. 78592-3-1/10
Kinchen, 92 Wn. App. at 452. Additionally, when the father left the boys alone at home,
he left them food. The boys also had access to the bathroom and a water supply.
Kinchen, 92 Wn. App. at 452. The court concluded that there was insufficient evidence
to support the father’s conviction for unlawful imprisonment because parents have legal
authority to restrict their children’s access to areas of the home and the boys were able
to leave their bedroom through a window. Kinchen, 92 Wn. App. at 450, 452.
Neither the State nor defense presented any evidence about whether Favors had
a reasonable means of escape. This is not, however, fatal to the sufficiency of the
evidence inquiry, because escape is a defense and not an element of unlawful
imprisonment. Viewed in the light most favorable to the State, Favor’s testimony is
sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement,
in a manner that substantially interfered with his liberty through intimidation, threats of
violence, and by blocking the 7-Eleven exit.
Favors attempted to leave the 7-Eleven twice and the second time Dillon said “I
told you one time; get your ass back over there” and “jumped at” Favors. Favors
testified that Dillon was a “big enough guy he could have just took me and slung me all
over the place.” A reasonable juror could conclude Favors feared that disobeying
Dillon’s commands presented a serious risk of danger and that Favors felt intimidated
by Dillon’s orders and complied to avoid a physical confrontation. Dillon was also acting
erratically and intimidating the 7-Eleven clerks who were trying to get Dillon to leave.
Favors called 911 discreetly with his Bluetooth headphones after Dillon did not let him
exit the 7-Eleven the second time because he “thought maybe he was pretty serious
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No. 78592-3-Ill I
about this.” Thus, sufficient evidence exists supporting that Dillon unlawfully restrained
Favors.
III.
Dillon contends that the trial court abused its discretion when it admitted
evidence that Dillon made threats and was aggressive toward Sergeant Kelsey and
medical staff at the hospital. Dillon contends that the probative value of the evidence
did not substantially outweigh the risk of unfair prejudice. We disagree.
We review evidentiary rulings under ER 404(b) for abuse of discretion. State v.
Gunderson, 181 Wash. 2d 916, 922, 337 P.3d 1090 (2014). A trial court abuses its
discretion if its decision is based on untenable grounds, an erroneous view of the law, or
is manifestly unreasonable. State v. Quismundo, 164 Wash. 2d 499, 504, 192 P.3d 342(2008). If evidence was improperly admitted, the court analyzes whether the improper
admission was harmless. Gunderson, 181 Wn.2d at 926.
A.
As an initial matter, the State contends that Dillon did not preserve this issue for
appeal because the court noted that its ruling “may be subject to further action and
objection as the testimony is actually taken” and Dillon did not object during the
examination of Sergeant Kelsey. Dillon responds that the issue is preserved for appeal
because when the trial court rules on a motion in limine, the losing party is deemed to
have a standing objection unless the trial court indicates that further objections are
required when making its ruling.
Dillon cites Powell to support his contention that the losing party to a motion in
limine has a standing objection, unless the trial court requires further objections when
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No. 78592-3-1112
making its ruling. State v. Powell, 126 Wash. 2d 244, 256, 893 P.2d 615 (1995). Under
Powell, the court explained the difference between final rulings and rulings that are only
tentative or advisory. Powell, 126 Wn.2d at 256. When a ruling is tentative, “any error
in admitting or excluding evidence is waived unless the trial court is given an opportunity
to reconsider its ruling.” Powell, 126 Wn.2d at 257. A trial court’s ruling on a motion in
limine is final, unless the court indicates that further objections are required during trial.
Powell, 126 Wn.2d at 257. The ruling is final even when a trial court “make{s]
comments to the effect that its rulings [are] subject to revision.” Powell, 126 Wn.2d at
257.
Here, during the trial court’s ruling, it stated “I believe the Court is prepared to
rule at least at this point in time. This may be subject to further action and objection as
testimony actually is taken. But at this point I am respectfully going to deny the defense
motion on C and D.” The trial court did not indicate that further objections were
necessary during testimony to preserve Dillon’s objection, thus the evidentiary ruling
was preserved for appeal.
B.
Evidence of prior crimes, wrongs, or acts is inadmissible if it is offered to
establish a person’s character or to show he acted in conformity with that character. ER
404(b). Such evidence, however, is admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. ER 404(b). Before admitting evidence of prior acts, the trial court must:
(1) find by a preponderance of the evidence that the uncharged acts
probably occurred before admitting the evidence, (2) identify the purpose
for which the evidence will be admitted, (3) find the evidence materially
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No. 78592-3-1/13
relevant to that purpose, and (4) balance the probative value of the
evidence against any unfair prejudicial effect the evidence may have upon
the fact-finder.
State v. Kilgore, 147 Wash. 2d 288, 292, 53 P.3d 974 (2002). The trial court must balance
the probative value and prejudicial effect on the record. State v. Jackson, 102 Wash. 2d
689, 694, 689 P.2d 76 (1984).
“Under res gestae or ‘same transaction’ exception to ER 404(b), evidence of
other crimes or bad acts 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.” State
v. Lillard, 122 Wash. App. 422, 432, 93 P.3d 696 (2004). Evidence may “complete the
story of a crime” when it rebuts a material assertion by the defendant, such as a claim of
self-defense. State v. Thompson, 47 Wash. App. 1, 11-12, 733 P.2d 584 (1987)
(defendant testified at trial).
Relevance is still a key component of the court’s inquiry. In State v. Crier, 168
Wash. App. 635, 646-47, 278 P.3d 225 (2012), this Court concluded that res 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).
During arguments on motions in limine, the State contended that Dillon’s
changing mood, from aggressive and threatening to happy and loving, and Dillon’s
uncharged threats to law enforcement went to “his state of mind and demeanor on the
night of [the] incident.” The defense argued that “the fact that Mr. Dillon continued to
have a vacillating mood, continued to act out towards medical staff at the hospital [was
not] necessary towards the State’s case” and “not part of what the State ha[d] to prove
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No. 78592-3-1114
[and] it would be unfairly prejudicial to Mr. Dillon given that [it was] fundamentally not
necessary.” Specifically, the defense argued Sergeant Kelsey could testify that “Mr.
Dillon’s mood was all over the place, that he was one minute saying he loved him and
singing and the other moment he was in a very different mood, a dark mood. But to say
that he threatened people [constitutes] 404(b) evidence [and] should be excluded.”
The court conducted an ER 404(b) analysis indicating:
I will find that given what has been described that these acts probably did
occur. I have nothing really to challenge the factual basis that the
prosecutor has recited. So I will find that the first prong basically has been
identified.
The purpose is in relation to this mental state that we have been talking
about which includes, again, I think reference to intoxication and so on.
But I think these, quote, other bad acts involving threatening or other type
of behavior are being offered to address what his apparent mental state is.
And as suggested in prong number three, I find that this is relevant and
that this evidence is relevant on those issues.
And in balancing the probative value, yes, the Court recognizes that any
description about threats has some prejudice. But I think it is outweighed
by the relevance in terms of more fully addressing evidence about his
mental state on the night in question. Indeed, as I suggested, this
evidence may cut different ways. And I think arguably would undercut any
potential prejudice.
So, for all those reasons, whether one uses a 404(b) analysis or just
conclude that this is part of the res gestae on the night in question, which I
think arguably it is, either way, at this point at least, I am respectfully
denying defense motions as to C and D.
The court found that the evidence of threats and aggression at the hospital was relevant
to show Dillon’s mental state at the time of the incident, and since Dillon was advancing
a voluntary intoxication defense, it was relevant to show the level of Dillon’s intoxication.
During direct examination of Sergeant Kelsey, the prosecutor asked about
Dillon’s demeanor at the hospital, to which Kelsey replied:
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No. 78592-3-1/15
[Sergeant Kelsey]: There were words to me, to the nurses, to the doctors.
It was—if he would get eye contact with you, he would stare at you. And,
again, sometimes it would be aggressive threats made and then other
times how much he liked music and then other times how much he loved
you.
[Prosecutor]: So did he make any specific threats to you at the hospital?
[Sergeant Kelsey]: There were words to the effect that I am going to kick
your ass. I don’t recall any other specific quotes or statements.
The trial court did not abuse its discretion because the evidence of Dillon’s
threats and aggressive behavior at the hospital was relevant to show his mental state
and the level of his intoxication. The defense proposed instructions regarding voluntary
intoxication. The State did not object to the defense’s proposed instruction on voluntary
intoxication. Dillon’s state of mind and level of intoxication were relevant to both the
State and defense’s theories of the case.
“Both prior and subsequent hostile acts or declarations have been found
admissible, to issues of motive, deliberation and state of mind, where relevant to such
conditions as of the time of the offense.” State v. Finch, 137 Wash. 2d 792, 822, 975 P.2d
967 (1999). “A defendant’s hostility toward his victims, even though expressed prior to
or subsequent to the crime, may be admitted to show that the hostility existed at the
time of the crime.” Finch, 137 Wn.2d at 822. In Finch, the court admitted a letter written
by the defendant while in jail that showed the defendant’s hostility towards the victims.
Finch, 137 Wn.2d at 821-22. The hostile statements were close in time to the murder,
thus they remained relevant to the State’s case. Finch, 137 Wn.2d at 824. Here,
Dillon’s hostility towards Sergeant Kelsey continued at the hospital, and therefore was
admissible to show his hostility at the time of the crime.
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No. 78592-3-1116
Further, the evidence was admissible to show Dillon’s level of intoxication. The
defense requested an instruction on voluntary intoxication. “What is relevant is the
degree of intoxication and the effect it had on the defendant’s ability to formulate the
requisite mental state.” State v. Priest, 100 Wash. App. 451, 455, 997 P.2d 452 (2000);
RCW 9A.16.090. Since Dillon’s defense was that he was too intoxicated to form the
requisite mental state, more testimony about Dillon’s level of intoxication had a low
prejudicial effect. Evidence of Dillon’s intoxication assisted the jury in determining
whether Dillon was unable to form the requisite mental state.
The court erred, however, when it characterized the evidence at the hospital as
“res gestae” evidence because the cases cited by the State are inapplicable here. Res
gestae evidence characterizes evidence that occurs prior to the crime charged or
immediately after and explains the context of the crime charged. Here, the evidence at
the hospital does not complete the story or provide context for the crimes charged.
The State cites State v. Lane, 125 Wash. 2d 825, 831, 889 P.3d 929 (1995), but in
Lane the court allowed evidence that showed bad acts and uncharged crimes leading
up to a brutal murder. The testimony included several witnesses regarding the two to
three day period before the defendants abducted the victim and demonstrated the
“degree of participation” of the each of the defendants in the murder. Lane, 125 Wn.2d
at 833-34. The State also cites Grier, but in Grier the court allowed evidence that
showed the defendant brandishing a gun and acting belligerently before the shooting
and was relevant to show a continuing course of action and set the stage for the
shooting. Grier, 168 Wn. App. at 648. Here, the evidence at the hospital of Dillon’s
demeanor occurred after Dillon completed the crimes and his arrest. The evidence did
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No. 78592-3-1117
not “set the stage” or provide additional context about the crimes charged. Thus, this
evidence was not “res gestae” evidence.
The trial court did not abuse its discretion because the evidence was admissible
to show Dillon’s hostility towards Sergeant Kelsey and level of intoxication.
V.
Dillon challenges several LFOs associated with his sentence. We address each
in turn. First, Dillon contends that the trial court improperly imposed, as a condition of
community custody, that he “pay supervision fees as determined by DCC.” We agree.
Dillon is indigent. RCW 9.94A.703(2) provides that “unless waived by the court,
as part of any term of community custody, the court shall order an offender to: (d) Pay
supervision fees as determined by the department.” Since the supervision fees are
waivable by the trial court they are discretionary LFOs. State v. Lundstrom, 6 Wash. App.
2d 338, 396 n.3, 429 P.3d 1116 (2018) rev, denied, 193 Wash. 2d 1007 (2019).
The record demonstrates that the trial court intended to impose only mandatory
LFOs; thus, we strike the community custody supervision fee. At sentencing, the trial
court stated it would waive the DNA fee, the filing fee, and “simply order $500 victim
penalty assessment, which is still truly mandatory, as well as restitution, if any.” The
trial court did not mention supervision fees. Under the section in the judgment and
sentence on LFOs, the trial court ordered Dillon to pay a $500 victim assessment fee
and noted that the total LFOs did not include restitution, which may be set by later order
of the court under RCW 9.94A.753. In the judgment and sentence, there is no option to
order the payment of supervision fees under the section on LFO5. Under the section in
the judgment and sentence on community custody conditions, the requirement that
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No. 78592-3-1/18
Dillon “pay supervision fees as determined by DOC” is buried in a lengthy paragraph on
community custody. From this record, it appears that the trial court intended to waive all
discretionary LFOs, but inadvertently imposed supervision fees because of its location
in the judgment and sentence.
Second, Dillon contends that remand is necessary to strike the interest accrual
provision. The State concedes that the interest accrual in the judgment and sentence
should be struck. Financial obligations, excluding restitution, no longer accrue interest.
RCW 3.50.100(4)(b). We accept the State’s concession.
Finally, Dillon contends that the court should remand to strike the $500
mandatory LFO because Dillon’s sole source of income is his Social Security disability
funds and garnishment of these funds violates 42 U.S.C. § 407(a).3 The State responds
that “even when Social Security benefits are a person’s sole source of income, a court
can properly impose mandatory legal financial obligations.”
In State v. Catling, 193 Wash. 2d 252, 438 P.3d 1174 (201 9), the court held that
Social Security benefits could not be used for debt retirement. We remand to the trial
court to amend the judgment and sentence to indicate that the $500 victim assessment
fee may not be satisfied out of any funds subject to 42 U.S.C. § 407(a).
We affirm in part, reverse in part, and remand to the trial court to modify the
LFOs consistent with this opinion.
~ 42 U.S.C. § 407(a) states that “The right of any person to any future payment under this
subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or
payable or rights existing under this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”
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No. 78592-3-1/19
~L.
WE CONCUR:
AU4’*
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