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IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
THE STATE OFWASHINGTON, Respondent,

v. KEVIN EUGENE HUTTON, Appellant. No. 73945-0-1

DIVISION ONE

UNPUBLISHED OPINION FILED: November 14, 2016 

### Mann, J. — A juryconvicted Kevin Hutton ofassaulting his ex-girlfriend and the police officer who arrested him shortly afterthe assault. Thejuryalso convicted him of multipleviolations of a no-contactorder. Hutton appeals, asserting violations of RCW 26.50.110(4) and doublejeopardy, instructional and evidentiary error, ineffective assistance ofcounsel, cumulative error, unlawful imposition offinancial obligations, and clerical error. Because the State concedes that one of Hutton's convictions violates RCW 26.50.110(4), and because thejudgment and sentence contains a clerical error, we reverse Hutton's conviction for felony violation of a court order and remand for imposition of misdemeanor violation of a courtorder and correction ofthe clerical error. We otherwise affirm.No. 73945-0-1/2

FACTS Based on allegations that Hutton assaulted Shamicia Jones and her mother in violation of a no-contact order, kicked a police officer, and repeatedly phoned Jones in violation of a no-contact order, the State charged him with two counts offelony violation of a court order, three counts ofmisdemeanor violation ofa court order, and
once count each of second and third degree assault. All counts exceptthe assault of the officer included a domestic violence allegation. At trial, Patricia Kingtestified that she lives with herdaughter, Shamicia Jones, and Jones' three boys. King said Jones and Hutton had an on-again off-again relationship and that Hutton sometimes spentthe night attheir residence. 

### King testified that on September 14, 2014, Hutton visited Jones. He began 

### drinking vodka and showing signs of intoxication. King was sitting on the porch when she heard Jones and Hutton arguing about a cigarette. Hutton said "Youcan't give me 

### a damncigarette, bitch?" Jones said"no" andHutton became "angrierandangrier."1 Eventually, Jones gave Hutton a cigarette and walked toward the door to the porch. 

### According to King, Hutton "rushedfrom the kitchen and hit her."2 Jones was "knocked out" and had injuries to her mouth and face. King told Hutton "I ain't paying you shitI 

### oweyou."3 Hutton became angry and hit King. She got upfrom thefloor and rushed Hutton, but he pushed her out of the way and ran out of the house. King then called
911.

1Report ofProceedings (RP) (May21, 2015) at 359. 2RP (May 21, 2015) at 360. 3RP (May 21, 2015) at 351.No. 73945-0-1/3 During a break in King's testimony, defense counsel moved for a mistrial based on King's testimony about the children's reaction to the assault and suggestions that Hutton had a history ofdomestic violence. The court denied the motion. Defense counsel expressly declined to request a limiting instruction. The court then admitted several exhibits, including the following stipulation: 1. There were multiple no contact orders issued by Seattle Municipal Court and King County Superior Courtforthe protection ofShamicia Jones prohibiting Kevin Hutton from contacting Ms. Jones and these orders were valid from 2013-2018. 2. There was also an anti-harassment order issued by the Seattle Municipal court for the protection of Patricia King prohibiting Kevin Hutton from contacting Ms. King and this orderwas valid from March 5, 2014 to March 6, 2016. 3. Kevin Hutton had knowledge ofall of these orders.[4] 

### The parties further stipulated thatfour recorded phone calls were made on a certain date to Jones' phone number. Ifmade by Hutton with knowledge of an existing nocontact order, the calls violated the order. 

### When King's testimony resumed, she identified Hutton's and Jones' voices on the recorded phone calls. On cross-examination, defense counsel confronted King with statements she made to Seattle Police Officer Failautusi Sa'au. Officer Sa'au's report, which the court admitted as an exhibit, states in part: Patricia stated that she was inthe living room next to the front door, 

### which was open, withShamica on the front porch. Atapproximately 

### 15[:]55hours, Kevin arrived at their residence requesting to gatherhis belongings.

Exhibit (Ex.) 15. (Emphasis added).No. 73945-0-1/4
Patricia stated Kevin was extremely intoxicated and was behaving aggressively. While on the front porch, Kevin asked Shamica for a cigarette, but he was denied. Kevin became extremely upset and began calling Patricia and Shamica names "bitches". Kevin approached Patricia, who was still standing on the front porch, and attempted to punch her. Kevin first swung with his left hand, (closed fist) and missed, 

### nearly hitting Shamica's head. Afterdodging the initial punch, Shamica attempted to run into the house. Shamica did not make it far as Kevin 

### immediately swung a second time with his right hand, (closed fist), striking the left side ofShamica's face. Patricia stated Shamica was instantly knocked unconscious and fell to the floor (the middle ofthe doorway). Patricia stated there was blood spatter, from the punch, on the front door. Patricia then stated Kevin began approaching her attempting to punch her inthe face. Kevin first swung with his lefthand but missed, (closed fist), nearly hitting her inthe face. Kevin then immediately swung a second time with his right hand, (closed fist) striking her on the left side ofher face. Patricia stated she was dazed, but did not lose conscious. Patricia stated herface was sore and that itwas painful to touch. Patricia stated Kevin then fled on foot southbound on 9th AVE SW.[5] 

### During her testimony, King disagreed withsome of the statements attributed to her in 

### this report. She denied being inside the house immediately prior to the assault. She also denied that Hutton threw more than one punch, that he swung and missed her 

### before hitting her, that Shamicia dodged the initial punch and ran into the house, and thatthe initialpunch occurred on the porch. Shamicia Jones testified that Hutton hit her inthe face, causing her head to hit 

### a wall and leaving her unconscious. She said Huttonwas drinking that day and 

### "[wjhen he drinks, he turns into somebody else."6 According to Jones, the assault occurred after she expressed anger about Hutton's nitpicking with the children. She

5 Ex. 22. 6RP (May 21, 2015) at 423.No. 73945-0-1/5
did not mention cigarettes and said King was in a bedroom when Hutton hit her (Jones). She admitted she did not have a clear memory ofthe events. Seattle Police Officer Ronald Mazziotti testified that on September 14, 2014, he responded to a 911 call reporting domestic violence. The court played a recording of the 911 call for thejury. Itincluded the following exchange: OPERATOR: 911. Hello? (Transmission noise.) OPERATOR: Seattle Police, 911. (Crying sounds.) OPERATOR: Hello? (Inaudible) Idon't hear anything. I'm disconnecting. (Dial tone.) (Phone ringing.) MS. KING: Hello? OPERATOR: Hi, this is Seattle Police, 911. MS. KING: Yeah, you all need to bring your motherfucking asses out here. He bust my -- mv baby's mouth open. I'll get a towel. OPERATOR: How long ago did this happen? MS. KING: Five minutes. That's been five minutes. He come back for me again, I'mgoing to cut him open. OPERATOR: Okay. Who did it? MS. KING: Her ex-bovfriend bust her in her damn mouth and ran out. He's going down

-- he's walking down Ninth Avenue.
... he hit her in the mouth. OPERATOR: Last seen on southbound Ninth Avenue. MS. KING: He hit me and almost knocked me out. DISPATCH: He hit both ofvou guvs? MS. KING: Yeah, he did. 

### [MS. KING describes and names Kevin Hutton] OPERATOR: Okay. All right. We'll be out therejust as soon as we can, okay? Thanks. 

### MS. KING: All right. (Inaudible) he knocked mvdaughter out and almost knocked me out. . . . 

### (End of911 call.)^

7RP (May 20, 2015) at 189-95. (Emphasis added). 5No. 73945-0-1/6
Officer Mazziotti drove to the 911 caller's address and interviewed Patricia King and Shamicia Jones. King gave him a photograph of Hutton and a description of his hairstyle. Officer Mazziotti also found documentation belonging to Hutton in a backpack in the residence. Approximately forty minutes afterthe initialdispatch report, another officer reported seeing a man matching the suspect's description several blocks from Jones' residence. The suspect, later identified as Hutton, initially gave officers a false name. King subsequently identified Hutton as her assailant during a show-up. Police arrested Hutton and placed him in Officer Mazziotti's patrol car. While en route to Officer Mazziotti's precinct, Hutton began thrashing violently inthe back seat and kicking the door and window. Officer Mazziotti stopped his car. 

### Hutton got out of the car and had to be subdued with a Taser. As officers attempted to put him back inthe car, Hutton kicked Officer Mazziotti inthe chest. The court 

### admitted an in-carvideo ofthe struggle and played it forthejury. The defense 

### stipulated that Hutton told the officer"I kicked you, yeah Iadmit to that" and that when 

### Officer Mazziotti said "The bitch is going [to] die?" Hutton said "Yeah."8 Emergency Medicine Physician Ian Doten testified that he treated Jones for her 

### injuries, which included a scalp laceration and a cut through her lowerlip and jaw. Jones told Dr. Doten that Hutton assaulted her with his fists and that she lost consciousness.

8 Ex. 14.No. 73945-0-1/7
Seattle Police Department Detective Jennifer Samson testified to the dynamics ofdomestic violence. Those dynamics commonly form a cycle, beginning with violence fueled by alcohol or drugs, followed by remorse and promises to change, followed by reunification and another incident ofviolence. The court played four recorded phone calls between Hutton and Jones forthe jury. One recording included the following conversation: MS. JONES: [The children are] having nightmares and shit. THE DEFENDANT: Aw (inaudible). MS. JONES: Yeah, you fucked them up. THE DEFENDANT: All right, babe. All right, babe. All right. MS. JONES: See, my face is puffed up. THE DEFENDANT: Isee, babe. That's (inaudible). THE DEFENDANT: I messed up, man. Shit. This is mv life, man. Damn. I'm sorry, man, you know? Ieven regret it (inaudible). You know what Imean? I mean, I'm sorry (inaudible). (Defendant singing) I'm sorry, babe. For not being (inaudible). I'm sorry, babe. So don't

-- (inaudible). I'm sorry, babe. You know what, though? I'm officially done, though? I don't get (inaudible). MS. JONES: That's right. THE DEFENDANT: You know what I'msaying? But guess what, though? 

### (Inaudible). Itwas good, though, because

--vou know why it's good? Because I'm cool. I'm done. You know what I'm saving? (Inaudible). Guess what, though. Never again. That will never happen again. Iknow one fucking thing, alcohol

- drugs period, is not for me.[9]

The defense called no witnesses. Inclosing argument, defense counsel 

### argued that theState's case was "riddled with inconsistencies."10 Counselpointed to King's in-court denial of many of the factual assertions attributed to her in Officer Sa'au's report. Counsel argued that Jones had virtually no memory of the events and 

### that King's testimony, with its inconsistencies, was insufficientto prove either second or thirddegree assault beyond a reasonable doubt standard. The prosecutorNo. 73945-0-1/8
conceded there were some inconsistencies between King's statementto the officer and hertestimony. He argued, however, that she was consistent on the core facts and that there was no doubt Hutton committed the assaults and no evidence that the blows

were accidental. Thejury acquitted Hutton offelony violation of a court order against King but convicted him on all other counts, including the assault and felony violation of a court order against Jones. Hutton appeals. ANALYSIS Violation of RCW 26.50.110(4) Hutton first contends his convictions for the second degree assault ofJones 

### and felony violation of a court orderviolate RCW26.50.110(4) and doublejeopardy. RCW26.50.110(4) precludes the use ofsecond-degree assaultto elevate a misdemeanorviolation of a court orderto a felony.11 See State v. Ward. 148 Wn.2d 803, 810-12, 64 P.3d 640 (2003) (under RCW 26.50.110(4), second degree assault cannot serve as the predicate offense that raises misdemeanorviolation of a court 

### orderto a felony); State v. Azpitarte. 140Wn.2d 138, 141, 995 P.2d 31 (2000) (same). Because Hutton's second degree assault ofJones was the basis forelevating his violation of a court orderto a felony, Hutton claims the felony violation of a court order conviction violates RCW 26.50.110(4). He also contends the appropriate remedy for a violation ofeither RCW 26.50.110(4) or doublejeopardy is to vacate the felony

9RP (May 26, 2015) at 512-14. (Emphasis added). 10 RP (May 26, 2015) at 582. 8No. 73945-0-1/9
violation of a court order conviction and impose the lesser included offense of misdemeanor violation of a court order. The State does not address Hutton's doublejeopardy claim, but concedes that 

### the felony violation of a court orderconviction violates RCW26.50.110(4). The State also concedes that vacation ofthat conviction and imposition ofthe lesser included 

### misdemeanoroffense is the appropriate remedy given thatthejurywas instructed on, and necessarily found the elements of,the misdemeanor. In re Pers. Restraint of Heidari, 174 Wn.2d 288, 274 P.3d 366 (2012) (remand for imposition oflesser offense 

### is appropriate wherejurywas instructed on and found the elements of the lesser offense). 

### We acceptthe State's concessions,12 reverse count one, and remand for entry ofthe lesser included misdemeanor violation of a court order.13 Self-Defense Instruction Hutton next contends the trial court abused its discretion in denying his request for a self-defense instruction on counts one and two. We disagree. A defendant is entitled to a self-defense instruction ifhe produces "some evidence" that he acted in self-defense. Werner, 170 Wn.2d 333, 336-37, 241 P.3d 

### 410(2010); Statev. Riley, 137Wn.2d 904, 909, 976 P.2d 624(1999). Toestablish

11 RCW 26.50.110(4) providesin pertinent part that"Any assault that is a violation of [a no

### contact] order... and thatdoesnotamountto assaultin thefirstorsecond degree
... isa class C felony." (Emphasis added). 12We need not reach Hutton's claim that the convictions violate doublejeopardy since the issue can be resolved on a nonconstitutional basis under RCW26.50.110(4) and Azpitarte. State v. Smith. 104Wn.2d 497, 707 P.2d 1306(1985) (a courtwill not reachconstitutional issues ifthey can bedecided on nonconstitutional grounds). 9No. 73945-0-1/10 self-defense," 'there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of.
. . great bodily harm; (2) this beliefwas objectively reasonable; [and] (3) the defendant exercised no greaterforce than was reasonably 

### necessary.'" Werner, 170 Wn.2d at 337 (quoting State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997)). "The trial court is justified indenying a requestfor a selfdefense instruction only where no credible evidence appears inthe record to support a defendant's claim of self-defense." State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 

### 1064 (1983). We review a court's determination thatthe evidence did not support a self-defense instruction for abuse ofdiscretion. State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002). Hutton contends a self-defense instruction was warranted because "an 

### intoxicated Mr. Hutton could have perceived a need to act inself-defense when 

### Shamicia got angry and said something" "thatpissed him off[.]"14 Heclaims the evidence "shows she (at least verbally) approached Mr. Hutton with anger immediately before she was hit."15 But evidence ofShamicia's anger does not support an inference 

### that Hutton feared bodily harm. There was no evidence that Shamicia's angry words 

### were accompanied byphysical aggression oranything Hutton mightreasonably have 

### perceived as animminentthreatofbodily harm. Hutton's intoxication does notrectify thisdeficiency in the evidence. Thetrial courtdid not abuse itsdiscretion in denying

13Theparties agree thatreversal ofthefelony violation ofacourtordercountmakes it 

### unnecessarytoreach Hutton's claimthatthesecond degree assaultandfelony violation ofacourtorder counts were the same criminal conduct for sentencing purposes. 14 Reply Br. ofAppellant at 2-3. 15 Reply Br. ofAppellant at 2-3. 10No. 73945-0-1/11 

### Hutton's requestfor a self-defense instruction. Cf. Riley, 137 Wn.2d at 912 ("mere words alone do not give rise to reasonable apprehension ofgreat bodily harm.") Evidence that Children Witnessed Assault 

### Hutton argues thatthe court abused its discretion in overruling his objections to 

### testimony that Jones' children witnessed and reacted to the assault. The objections occurred inthe following exchange: 

### [PROSECUTOR]: And did - now, you've already told us how Ms. Jones was laid out on the ground, she was knocked out. Did her children witness that? 

### [KING]: The two small ones did. Deshawn was outside playing, Major 

### and Apollo, they were -- when Iwas -- when Iwas coming back up from the hit that he did to me, when Irealized and rushed him, after he ran 

### out, they were standing rightthere. So they might have been inone or two, the first - the second bedroom or the third, Idon't know. They were 

### running back and forth out to the front, you know. Because when they fight. They hide. They like get out the way. 

### [DEFENSE COUNSEL]: Objection. 403 as to this portion of the answer. THE COURT: Idon't know what you're talking about. You have to state your specific objection so Ican rule on it. 

### [DEFENSECOUNSEL]: Objection, prejudicial as to the children.
THE COURT: Overruled. 

### [PROSECUTOR]: Now, you said that the children were present. What - now, what -- not what they said, but what was their reaction? [KING] Scared, crying. Crying. [DEFENSE COUNSEL]: Same objection. THE COURT: Overruled.'16' 16 RP (May 21, 2015) at 366. (Emphasis added).

11No. 73945-0-1/12

Hutton contends his objections should have been sustained because the evidence was irrelevant and "more prejudicial than probative" under ER 401 and ER 

### 403.17 ButHutton's trialcounsel did not object on those grounds below. Rather, 

### counsel simply claimed the evidence was "prejudicialas to the children."18 The court properly overruled that objection. The mere fact that evidence is prejudicial is not grounds to exclude it. State v. Rice. 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (noting that "[a]lmost all evidence
... is used to convince the trier offact to reach one decision rather than another," and that admissibility turns on whether the evidence is unfairly prejudicial). Hutton's other arguments on this issue are raised for the first time on appeal and need not be considered. State v. Price, 126, Wn. App. 617, 637, 109 P.3d 27 (2005) (if a party objects to the admission ofevidence on one ground at trial, that party may not assert on appeal a different ground for excluding the evidence); RAP 2.5(a). Evidence Suggesting a History of Domestic Violence Hutton argues that portions ofPatricia King's testimony were inadmissible under ER 404(b) and the court's pretrial ruling in limine. We review a court's decision to admit or exclude evidence for abuse ofdiscretion. State v. Ashley, 186 Wn.2d 32, 38-39, 375 P.3d 673 (2016). The appellant bears the burden ofdemonstrating an abuse of discretion. Ashley. 186 Wn.2d at 38-39. Hutton fails to demonstrate any abuse of discretion.

17 Br. ofAppellant at 17. 18 RP (May 21, 2015) at 366. 12No. 73945-0-1/13
As noted above, the trial court ruled in limine that prior domestic violence evidence would be excluded unless Hutton opened the doorto it. During King's testimony, the following exchanges occurred: [PROSECUTOR]: Atwhat point in this sequence ofevents did you call 911? [KING]:
... Igot the phone and Icalled 911. And Iwas --1 said something to make them get there. Iwas like, Oh, he gots a gun and you guys need to get here really quick. And they got there really quick. So I

- - because I'm fed up. I'mjustfed up with him getting away with doing what he's doing. I'm justtired of it. I'm justtired of it.119] Defense counsel did not object. King returned to this subject later in hertestimony: [PROSECUTOR] Whatwas the purpose ofthat [911] call? [KING]: He hit my daughter and he hitme and knocked her out. Idon'twantto 

### curse, but I'mjust eff -- fed up withthe fighting and stuff. I'm just tired ofit. [DEFENSE COUNSEL]: Objection. 404(b). 

### THE COURT: Let's ask anotherquestion.'20] Atthe next recess, defense counsel moved for a mistrial, arguing in partthat 

### the emphasized testimony suggested a history of priordomestic violence in violation of 

### ER 404(b) and the ruling inlimine. Counsel stated that a limiting instruction would be insufficient to cure the error and that the prosecutor had failed "to ask questions 

### carefully" so as "nottoelicitanswers that are inadmissible [.]"21 The court denied the
mistrial motion: THE COURT: Well, there was a motion in limine regarding prior history, yes?
19 RP (May 21, 2015) at 368. (Emphasis added). 20 RP (May 21, 2015) at 375-76. (Emphasis added). 21 RP (May 21, 2015) at 386. 13No. 73945-0-1/14 [DEFENSE COUNSEL]: Correct. THE COURT: Okay. So
. . . the State was not permitted to elicit anything about prior history, right? So he's not supposed to ask witnesses questions about, you know, did he have - did they have prior fights in the past, for instance. But we're nottalking aboutthat right now. What we're talking about is a witness blurting out something, about. I'm sick ofthis, something to that effect. She didn't say he ever hit her before, but she just basically said something to the effect ofalong the -- I'm sick and tired ofwhatever, their behavior, or their relationship, something like that. I don't remember her ever saving that he hit her before. So I don't think there's a basis for a mistrial. But that's what I'mjust cautioning, because you know, it's -- as you well know, as you both well know, when the witness is on the stand, 

### you kind oflose a little bit of control aboutwhat comes outof their mouth. So Ithink it's importantthatwe caution her not to talk about, you know, these things, because we're going to get into areas that really we shouldn't. That's all.'22! Hutton does not challenge the court's mistrial ruling. Instead, he challenges the 

### court's individual evidentiaryrulings under the court's pretrial ruling and ER404(b)23. With respectto King's initial nonresponsive answer about being "fed up with him getting away with doing what he's doing," Hutton's trial counsel did not make a 

### contemporaneous objection. When he finally did object during the next recess, he did not askthe courtto strike the testimony and expressly declined to seek a curative instruction. Instead, he moved for a mistrial. Hutton does not challenge the court's 

### mistrialruling. To the extent he now claims the court should have done something 

### other than grant a mistrial, his argument is raised for the first time on appeal and need

22 RP (May 21, 2015) at 384-85. 23 ER 404(b) limitsthe admission of prior bad acts: Evidence of other crimes, wrongs, oracts is not admissible to prove the characterof a personin order to showaction in conformity therewith. Itmay, however, beadmissible for other purposes, such as proof ofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake oraccident. 14No. 73945-0-1/15

not be addressed. RAP 2.5(a); State v. Gresham. 173 Wn.2d 405, 433, 269 P.3d 207 (2012) (evidentiary errors under ER 404(b) are not constitutional errors). In any event,
we concurwith the trial court's conclusion that King's testimony was nonresponsive 

### and only vaguely suggested a prior history. As such, itarguably did not violate ER 404(b) or the ruling in limine and was readily curable via a curative instruction. Hutton fails to demonstrate any abuse ofdiscretion inthe court's handling ofthis testimony. Hutton's trial counsel did objectto King's subsequenttestimony that she was 

### "fed upwith the fighting and stuff. I'mjust tired ofit."24 But again, this testimony was nonresponsive and arguably suggested nothing more than a history of discord in the relationship. The courtdid not abuse its discretion in simply steering the exchange away from the topic. 

### Finally, Hutton contends the court abused its discretion in admitting a portion of
a recorded phone call in which he told Jones "I'm sorry babe, of all of things I'vedone 

### to you. Baby, I'm sorry, boo, of all the things."25 Hutton argued below that this statement "implies a domestic violencehistory."26 Butlike the evidence discussed above, Hutton's vague statements did not necessarily refer to any priordomestic violence or violate ER 404(b). State v. McCarthy. 178 Wn. App. 90, 312 P.3d 1027 

### (2013) (witness' vague reference to "otherthings" the defendanthad done "did nottell 

### thejury anything" about priorbad acts). To the extent the statements implied such a history, the court could have properlyconcluded that their probativevalue—which included Hutton's remorse forthe current charges and his remorse's part inthe cycle
24 RP (May 21, 2015) at 376. 25 RP (May 26, 2015) at 472. 15No. 73945-0-1/16 

### ofdomestic violence described by Detective Samson—outweighed any prejudice from
a vague reference to other "things" he'd done. There was no abuse ofdiscretion. Inany case, any evidentiary errors were harmless. Errors under ER404(b) are harmless unless there is a reasonable probability that the verdict would have been 

### materially different but forthe error. Gresham. 173 Wn.2d at 433. There is no reasonable probabilitythatthe evidence challenged in this case affected the verdicts. The State's case on the counts resulting in conviction was well established. The core 

### facts in King's and Jones' testimony were bolstered, and insome instances 

### corroborated, by objective and/or undisputed evidence. That evidence included the 911 call, blood spatterevidence consistentwith King'saccount of the assault on Jones, OfficerSa'au's report,27 Dr. Doten's testimony regarding Jones' statements in 

### the emergency room, the recorded phone calls, Hutton's remorse and tacit admission in one of the phone calls, Hutton'sviolent behaviorin the patrol car, the in-carvideo, and Hutton's admission that he said "I kicked you, yeah Iadmitto that" to Officer 

### Mazziotti.28 The juryalso heard evidence ofHutton's flightfrom the scene, his use of a false name, and his violent interaction with police after his apprehension. 

### Furthermore, the prosecutor's closing argument did not focus on, or even expressly mention, the challenged testimony. And any vague suggestions ofpriordomestic violence were essentially cumulative of the stipulated evidence that Hutton had

26 RP (May 26, 2015) at 472. 27With respect to the assault of Jones, OfficerSa'au's reportcorroborated King's testimonythat Hutton was intoxicated and behaving aggressively before the assault, that the assault wastriggered by 

### anargumentoveracigarette, thatHutton called Jones a"bitch," RP (May 21, 2015) at358, Ex. 22, that hepunched Jonesand knocked herunconscious in thedoorway, and thattherewasblood spatterin that area. Ex. 22. 16No. 73945-0-1/17 

### multiple priorno-contact orders and an anti-harassment order "for the protection of 

### Shamicia Jones and Patricia King.29 There is no reasonable probability that the challenged evidence was material to the verdicts. Ineffective Assistance of Counsel Hutton next argues that to the extent his counsel failed to preserve the evidentiary issues discussed above, he received ineffective assistance of counsel. To succeed on this claim, Hutton must demonstrate both deficient performance and resulting prejudice—i.e. a reasonable probability that, but for counsel's omissions, the result ofthe proceeding would have been different. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). "Only in egregious circumstances, on testimony central to the State's case, willthe failure to object constitute incompetence ofcounseljustifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). The testimony challenged on appeal was not central to the State's case. And for the reasons mentioned above, there is no reasonable probability that any deficient performance affected the outcome ofthe trial. Cumulative Error Hutton contends he should receive a new trial due to cumulative error. While


### errors that do not individuallyrequire reversal may stillcollectively deny a defendant a fair trial under the cumulative error doctrine, State v. Davis. 175 Wash.2d at 287, 345,

28 Ex. 14. 17No. 73945-0-1/18
290 P.3d 43 (2012). "The doctrine does not apply when the errors are few and have little or no effect on the outcome ofthe trial." State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Financial Obligations Hutton's sentence includes a mandatory $500 victim penalty assessment (VPA) and a mandatory $100 deoxyribonucleic acid (DNA)fee. For the first time on appeal, Hutton contends "[t]he relevant statutes and rules," including GR 34, "prohibit imposing 

### [financial obligations] on impoverished defendants, [and] reading these provisions 

### otherwise violates due process and the right to equal protection."30 Hutton's arguments are controlled byrecent decisions of this court. State v. Shelton, 194 Wn. App. 660, 378 P.3d 230 (2016) (holding that preenforcement due process challenge to 

### mandatory DNAfee was neither ripe nor manifest constitutional error and therefore could not be raised for first time on appeal, that Legislature divested courts of discretion to considerability to pay when imposing mandatory financial obligations, and that State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) does not apply to 

### mandatoryfinancial obligations); State v. Tyler, 195Wn. App. 385, 404 n. 11,_ P.3d 

### (2016) (applying Shelton tomandatoryVPA and rejecting argument thatRCW 10.01.160(3) applies to mandatoryfinancial obligations); State v. Mathers, 193Wn. 

### App. 913, 923-24, 376P.3d 1163 (2016) (holding that GR 34 applies towaiveroffiling fees, not criminal costs, and rejecting equal protection and due process arguments based on GR 34, Jafarv. Webb, 177 Wn.2d 520, 303 P.3d 1042 (2013), and Fuller v.

29 Ex. 15. 18No. 73945-0-1/19 Oregon. 417 U.S. 40, 94 S. Ct. 2116, 40 L Ed. 2d 642 (1974)); State v. Lewis. 194 Wn.App. 709, 379 P.3d 129 (2016) (because there is a rational basis to impose DNA fee for every felony sentence, DNAfee statute does not violate equal protection); State
v. Seward, No. 47581-2-11 (Wash. Ct. App. Nov. 1, 2016), http://www.courts.wa.gov/ opinions/ pdf/D2%2047581-2-ll%20Published%20Opinion.pdf(reaching and rejecting due process challenges to DNAfee and VPA, and rejecting argument that mandatory financial obligation statutes must be harmonized with RCW 10.01.160(3)). We adhere
to these decisions. Clerical Error The parties agree, and we concur, that thejudgment and sentence contains an


### erroneous reference to an aggravating factor thatthe State withdrew at sentencing. 

### Finding ofFact 2.1(j). The trial court is directed to remove the reference from the judgment and sentence on remand. Costs on Appeal Hutton asks that we not impose costs on appeal under RAP 14.2. That rule allows a commissioner or clerkto award costs to the party that "substantially prevails" 

### on review, "unless the appellate court directs otherwise in its decision terminating 

### review." The ruleexpressly prohibits an award ofcosts ifneither party substantially prevails. We conclude there is no substantially prevailing party in this appeal; therefore, no costs are imposed under RAP 14.2.

30 Br. ofAppellant at 27. 19No. 73945-0-1/20 

### Affirmed inpart and reversed and remanded in part.

tfat^Xs

WE CONCUR: 

# &X.J

20